LS 101 Advocacy Skills

8 February 2021
Dr. Ringo Tenga

An Introduction to Trial Advocacy: A General Overview

We have to reflect on the role of an advocate in representing the client; and the activities
relating to trial preparation.
The Role of an Advocate in Representing the Client
Susan Blake on Legal Advice & Drafting 5th Edn p. 4 chapter 1: “It is crucial as a practicing lawyer
to remember at all times that you are there because the client needs representing. From the
first interview to the end of the case you are not there to try to fit the client into a Chapter in a
legal text-book, or to judge the client. But you are there to find out all you can about the case
and to do all you can for the client. You are just a form of an agent.” You are just representing
the client and his views are paramount. Otherwise, your task is to simply represent the client.
Every case is unique to its own circumstances and so you need to develop the skill of listening
what you client tells. Listening is indeed an art. Do not show to the client you know too much so
as to interrupt her or him. The ability to listen thus sometimes must be taught.
The Activities Relating to Trial Preparation
Thomas Mauet, “Trial Preparation and Strategy” Ch. XI in Trial Techniques, 7 th Edn. Aspen
Publishers, Ny. 2007, p. 483. He says “The ‘secret’ to an effective trial preparation is no secret
at all. It’s preparation, preparation and more preparation! It’s 90 percent perspiration, 10
percent inspiration. It’s preparing sooner, not later. Hence, the trial lawyer who starts preparing
for trial early, does it systematically and thoroughly, and incorporates an understanding of
psychology into that preparation is more likely to achieve a successful result at trial.”
Unless you are prepared, your opponent will batter or surprise you in court. You are called
learned counsel simply because we learn and get really well prepared through research and
investigation.
Sources for Trial Advocacy
Statutory Sources:
1. The Civil Procedure Code Act.
2. The Evidence Act.

3. The Criminal Procedure Code Act.

4. The Arbitration Act.

1
Nicksoni Filbert Notes (unedited)
 5. Other Procedural Statutes (for all types of laws they all have their own procedures); Civil
& Penal Statutes Generally. Importantly, we all need to know how do we get prepared
to meet the client, discuss with him, what can of an interview to carry, kind of questions
to ask (certain questions can freeze a client and make him tense)
Literature
1. B.D. Chipeta Civil Procedure in Tanzania (Dar es Salaam University Press, 2002).
2. B.D. Chipeta, A Magistrate’s Manual (TM, Tabora).
3. B.D. Chipeta A Handbook for Public Prosecutors (3 rd Ed.).

4. R. Kuloba Judicial Hints on Civil Procedure (Law Africa, Nairobi, Kenya).

5. Lobulu, Ben The Pitfalls of Litigation, Lobulu & Co Advos. 2004 Arusha).
6. Blake, Susan, Effective Litigation (OUP, 2005).
7. Mtenga Ofmedy Mussa (2019) Criminal Practice Manual – A Best Practice Guide to Trials
(Dsm).
8. Twaib & Kinywafu Criminal Procedure and Practice in Tanzania – A Case Digest
(JurisPublishers 2019); Books Listed in the Course Outline;
Bench Books

1. A Bench Book for Judges in Tanzania (Jan. 2019-The Judiciary GoT).

2. Quick-Reference for Magistrates in Tanzania (GoT).
3. A Handbook for Magistrates in the Primary Courts Jan 2019, The Judiciary – GoT;
Criminal Procedure Bench Book 2018 (Kenya).
This will guide you to what the magistrates or judges want to hear or expect from you as an
advocate. How to organise a representation for you client in court thus becomes paramount.
(Tsu, The Art of War). He says, a wise general who goes to war will tune his speed to the speed
of the slowest soldier, because if he tunes it to the speed of the smartest and fastest soldier,
the entire army might be left behind.

A. Of Trials and the Necessity of Representation

Defining the Trial
Trial is simply a process under which disputes are authoritatively determined. This process
enables the parties and the decision makers to distinguish truth from falsehoods in any factual
situation and enable the decision maker to make a fair and just decision. We look at facts
differently and will always try to interpret the laws in our favour. Thus, we need the decision
maker to be skilled enough to judge from the most materials facts. Material facts because their

2
Nicksoni Filbert Notes (unedited)
determination goes to the root of the case. Issues being those facts in dispute of which the
decision maker will have to resolve. One person asserts a fact or law, the other disputes, Order
XIV(1)(1) of the CPC. All facts that are connected to the issue are material facts. Before the
court, you only need to present materials that are a fact.
Necessity of Representation
The growth of the law, fundamental rights and complex organisation of society has made it
increasingly difficult to understand the law on the basis of simple Code of Hamurabi or the 10
Commandments.
Statutory and Constitutional Basis
F. Twaibu, The Legal Profession in Tanzania says
The Criminal Procedure Code under section 310 provides for the Right of an Accused to be
Defended. The Constitution under Article 13(6)(a) (Presumption of Innocence in criminal
matters). Case Law is Kassim Manywele v R. There is also national reports on the right to
representation; The Msekwa Commission 1977;
Ethical Basis of Legal Professional Services
a. Litigation fairness;

b. Competence;
c. Loyalty. You need to be highly loyal to your client because you are simply an agent. Do
not double deal.
d. Confidentiality. Keep your client information in confidence, always. Failure to do this,
you loose your integrity. Do not unclothe your client.
e. Reasonable fees; do not just take the fees while you know it is a dead case. Charge
reasonably.
f. Public service. Provide probono services or free services to teach people about law and
its principles.
Litigation Fairness
An advocate has a duty to the Court, the Client, the opposite parties and the public to represent
the Client with diligence and candour. An advocate would not deliberately mislead the Court,
raise frivolous issues, delay court process, disrespect the court, hide material facts or
authoritative texts, etc. Do not just take any case, even the one you do not know. Be honest
and frank (acting with candour).
Competence

3
Nicksoni Filbert Notes (unedited)
Lack of preparation is incompetence.
Structure of the Civil Trial (assumption being that there are two parties here)
The Civil Procedure Code Act

Orders I –XX – a
A formalistic structure of the Civil Trial is adopted that starts with the INSTITUTION OF SUITS.
The Code Act ignores the Pre-Litigation Activity. The pre-litigation state is highly important.
Here you get the particulars.
Pre-Litigation Phase:
1. Meeting Client. From him, we will know about the case by listening to him or her. We
write notes out of it and we ask questions. The story gets thicker and finally we have the
whole story and a story is a story. Why does the client come to you to tell you the story?
It is because he wants a legal remedy and the remedy can only come if we go to dispute
settlement authorities such as a court or tribunal.
2. Research and Case Analysis. We go to court to tell the court the legal stories. The story
of the client is presented as a legal story. Advocacy is about telling legal stories in court.
To do that, you need to go through research and legal analysis.
3. The Legal Opinion. It is also called a legal memorandum. This is a logical consequence of
your research. The legal opinion will help you to advise your client accordingly. The Legal
Opinion is actually for your use.
4. Advising or Counselling. To the client now you write an opinion letter—which is a
shorter version of you legal opinion. In case you are retained to go to court, then you
will use it later. The letter should be brief and short and should also state the chances of
success or losing.
5. Demand Notice. If you think you will go ahead with the case, write to the other party
without prejudice that you are going to the court and will win and so you propose a
settlement. If you are going to loose, do not write the demand notice because there is
nothing to demand. You rather will write a kind, humble letter to resolve the matter as
you know you will loose. You save expenses of your client. Thus, you will need to
communicate with the other side.
6. Negotiation and Settlement. If the other party agrees, you can go to negotiation and
settlement. If the negotiation is successful, you settle the matter. If it is not, you go on
with the case. The issue is trying to shorten the case. An advocate is not supposed to sell
the settlement.

7. Drafting Pleadings. When the negotiation fails, you prepare pleadings and documents.

4
Nicksoni Filbert Notes (unedited)
 8. Institution of suits. This is where the Civil Procedure Code Act comes in from orders I-XX.
In the Litigation Phase
We assume that you understand pre-trial stage (means pre-litigation. Here it means we already
have filed documents but we are yet to go to the court to be heard).
i. Filling Pleadings (already drafted, with the issues you want and the prayers you need: it
can be a petition, a plaint, an application,
ii. Interlocutory applications: this is for the purpose of getting interim orders. For example,
someone wants to demolish your house, so you can apply for an interim injunction
pending determination of the main suit. You can appoint guardian ad litem by
interlocutory application to guard your property pending the determination of the
case; you can want a court order to demand information from the other party.
Others call these interim applications. But they are not necessary interim. If
information is granted, that’s final. Most of these applications are done through
chamber summons and affidavit. An affidavit is a sworn document which provides a
prima facie evidence which shows that you have a case. You provide the court with
the relevant facts which might actually be used by the court to determine the case.
Thus an affidavit is an evidence which needs to be attested. You cannot attest the
document you have yourself prepared.
iii. 1st Pre-trial conference (PTC). The judge here determines issues. If he sees no
agreement, he will order you to go to ADR.
iv. ADR. This is provided within the trial but the negotiation is outside the trial. And for the
ADR, it is the judge who recommends it. If you succeed, the matter ends there. If
you fail, you go back to the judge and the case will go to the trial phase.
The Trial Stage
i. 2nd PTC. You know issues will be properly framed so that we know now what to argue in
court. It is the duty of the court to frame issues. But the court will inform you to
propose issues which the Court will frame. If you had not done your work before in
the pre-litigation stage, how will you frame the issues before the judge? See Order
XIV. You must have listed the witnesses you will use and the evidence, etc and the
time you will use, etc.
ii. Framing issues:
iii. Opening statements
iv. Examination of witnesses

v. Final submissions

5
Nicksoni Filbert Notes (unedited)
 Judgment
In the trial process, you need to say what you need and the skills for each stage.

B: Unpacking Each Phase of the Civil Case Trial

B.1 Pre-Litigation Phase
1. Meeting the Client
Deliverables
a. Client interview Notes

The Legal Memorandum or Opinion

Its purpose is to create a comprehensive and analytical..
Structure of the legal opinion (IRAC or FILO)
a. Facts: must be written a chronological order;

b. Issues
c. Brief Answer
d. Discussion
e. Conclusion
Demand Notice Structure
a. Facts
b. Issues
c. The claim
d. Legal basis for the claim
e. Demand to settle

f. Without prejudice
Essential skills here include
a. Writing skills
b. Drafting skills.

6
Nicksoni Filbert Notes (unedited)
Drafting of Pleadings
Before going to court, you need a trial notebook which compiles all the information we have
researched and compiled.
Skills for a lawyer according to Blake

7
Nicksoni Filbert Notes (unedited)
 THE LEGAL FRAMEWORK FOR ADVOCATES
1. The Tanganyika Law Society Act
2. Advocates Act

3. The Advocates (Disciplinary and Other Proceedings) Rules, 2018 GN No. 120 of 2018.
4. The Advocates Remuneration Order 2015 (GN. NO. 264 of 2015). Taxation proceedings
are those proceedings for determining how much the advocate is or was actually
supposed to be paid.
5. The Notaries Public and Commissioner for Oaths Act.
6. The Advocates (Professional Conduct and Etiquette) Regulations, 2018 (GN. No. 118 of
2018). Read part IX carefully. All other rules are manageable if you have integrity under
Part II.
Regulatory Authorities for Advocates: Chief Justice; Judges; advocates committee; TLS Ethics
Committee; civil claims based on contract or professional negligence.

8
Nicksoni Filbert Notes (unedited)
 STAGES IN A CRIMINAL TRIAL IN THE HIGH COURT OF TANZANIA
This down here is for a civil trial though
The bench guides are helpful here. For a civil trial, you lodge a plaint to start a case. However,
the plaint is not a long document. It summarises the essential facts of the case. If a case is
negligence case, what are its essential elements? Negligence is a cause of action; but then what
are the elements of negligence? (a) Duty of care. Where does the duty of care arise from? A
negligence duty of care is a general duty. It arises from statutory obligations stipulated in the
law. The rules actually summarise the common law duty of care for your client. (b) The second
aspect of negligence is the breach of that duty. Then one has to show damages (general and
specific and you do not need to give evidence here until trial. (c) Lastly, you finish with the
prayers to the court). These three elements might appear in the plaint (for a negligence case as
we have shown). These three duties of care in three separate paragraphs must be clearly
indicated in the plaint. After the cause of action (which comes after parties have been
identified), the following paragraphs are about the particulars of the cause of action.
Thus, every cause of action has its own elements that need to be established. For negligence
the elements are different from contract or matrimonial disputes. The importance of doing all
this is to avoid the preliminary objection of the plaint not disclosing any cause of action (simply
because its elements are not there).
After these pleadings comes the PTC. The art of cross examination—how to actually cross-
examine witness. Which methods of cross-examination to use? But where did you learn it
from? In advocacy skills, we will learn these aspects. The Evidence Act is relevant on
examination in Chief, cross-examination and re-examination (rehabilitation). The most
important part or skill to learn is that of the cross –examination because it is the only method
to get what is true and what is not. If your preparation was poor, you will not see any loopholes
in your client’s case. Oftentimes when the client comes to you, he is 50% lying. For that reason,
it is necessary to interview and take everything what he says so that you are able to decipher.
The story they tell you, you need to subject it to scrutiny. You need to ask them, for example, to
write witness statement or evidence and further the research, the more you realise what is true
and what is not. After the interview and the retainer agreement, you need to do research both
factual and legal. You will have to become a detective. You will realise what was actually 90%
true is actually 60% lies. That is why you need to sign for your fees up early in the first interview
and to do all these, you must charge the client. In your retainer, you need to inform you client
what will be paid and the stages upon which he will have to pay. This must be communicated to
you effectively and in a manner he understands. The retainer agreement thus tells him not only
what you will be doing but also what he will pay. This also protects your integrity. Do not base
your case on factually untested facts. You have the duty to test their veracity no matter how
shocking they are.
Summary of Steps

9
Nicksoni Filbert Notes (unedited)
Trial in the High Court Practice & Procedure
a. Stage one: Preliminary inquiry (PI) stage. This is governed by section 178 of the Criminal
procedure Act; section 246-256 of the Criminal Procedure Act on committal
proceedings.
b. Stage two: Plea taking and preliminary hearing. Preliminary inquiry is different from
preliminary hearing.
c. State three: commencement of hearing: opening statements,
d. Stage four: close of prosecution case
e. Stage five: ruling whether there is any case to answer. Where there is no case, the
accused is discharged.
f. Stage six: Case for defence. The defence case comes only when there is a case to
answer, otherwise, the case will end at stage 5 and this will mean that the prosecution
has failed to prove the elements of each offence and the case will be dismissed. In the
civil case, where you have a cause of action, then you need to prove the elements of the
cause of action. In criminal matters, you cannot amend the charge to replace the defect.
Sometimes, the statement of offence and the particulars of the offence do not meet or
align or match. So, the defective charge sheet will thus be removed. Unfortunately, the
criminal procedure code does not give clear mandate and powers on the courts of law
on what to do and proceed in these cases.
g. Stage seven: Close of hearing followed also with final submissions.
h. Stage Eight: Judgment writing. The verdict can be dismissed, no case to answer, etc.
Stage nine is based on the outcome of stage eight. This means the stages can be broken
somehow.
i. Stage Nine: Conviction, Mitigation and sentencing
The lecturer focused on the High Court procedures and stages because the Bench guides and
Mtenga have written this quite well.
Stage: Preliminary Inquiry
Section 178 of the Criminal Procedure Act; sections 246-256 of the CPA on Committal
proceedings
The Republic v (i) Doddoli Kapufi (II) Paston Tusalile, Criminal Revision NO. 1 of 2008, C/F No. 2
of 2008, CAT (Unreported).

The processes here include:

10
Nicksoni Filbert Notes (unedited)
 a. Drawing and filing of information. This is usually done in the lower court. The
prosecution will provide to the court information of what they have against the accused.
The information will shared with the accused to see his case.
b. Committal proceedings. These are regulated. They simply mean the lower court is now
committing the case to the High Court. It does not take any plea or whatever. It just
extracts information, records, shares it and proceeds with committal proceedings. The
procedure verifies information in general. Certain information might not be admissible
in the court of law, etc. the purpose is to protect the High Court from dealing with very
minute small details on the preliminary inquiry. PI (preliminary inquiries) Cases are
those cases filed in the lower courts.
c. Assignment of interpreters. These are assigned by the court for a case. For example, the
accused is a pare speaker who knows not neither Swahili nor English. It happens always
with foreign accused persons.
d. Interpreter’s oaths or affirmations. The interpreters will take their oaths based on their
religions. Adventists also affirm.
Stage Two: Plea Taking and Preliminary Inquiry
In the first stage, no plea was taken. It is because the case does not belong there and it is not a
court for you. In the preliminary stage, some people have stayed there for up to nine years. It is
at the High Court where you will take the plea. These processes involved in this stage are:
a. Detective information during plea taking.

b. Accused’s own plea of guilty. The case can end here.

c. Plea of autrefois acquit
d. Plea of autrefois convict (double jeopardy).
e. Plea of a pardon (presidential clemency).
f. Doctrine of issue estoppels. Although the charge might pass, but there are certain issues
which have been already determined. So, the prosecution is estopped from raising the
issues again because they have been determined or rejected. It is almost going to
double jeopardy.
g. Refusal to plea to the information. The accused does not agree or refuse to plea. This
will be taken as a plea of not guilty and the case will go to the trial.
h. Plead of not guilty. Once pleaded, the matter goes into trial.
i. Preliminary hearing upon the plea of not guilty. The preliminary hearing allows the
prosecution to make the submission of the documentation they have.

11
Nicksoni Filbert Notes (unedited)
 j. Tendering of exhibits at preliminary hearing stage. Follows the logical consequence of
the first.
k. Omission to conduct preliminary hearing. Should this process not be followed.
l. Unsoundness of mind of the accused person. What happens here? There are guidelines
here. For example, special facilities.
Stage Three: Commencement of Hearing

There are about 19 subheadings

a. The court must select assessors.
b. Accused’s objection to assessors
c. Judge to explain to assessors about their role
d. Examination of witnesses

e. Witnesses’ oaths or affirmations

f. Refractory witness
g. Hostile witness
h. Competence and compellability of witnesses in general
i. Evidence of spouses

j. Procedure for recording evidence

k. Examination in chief
l. Rules for a successful examination in chief
m. Cross-examination
n. Rules for a successful cross-examination
o. Failure to cross-examine on a very important matter. The court will make a negative
inference against you. Thus, you need to consider all necessary important issue raised
and cross examine them.
p. Re-examination
q. Raising New Facts in Re-examination. Any new fact raised, the other party will have the
right to cross-examine. This process can be stopped because the trial might not end.
r. Questions by the Assessors
1. (a) Assessors never to cross-examine witnesses

12
Nicksoni Filbert Notes (unedited)
 2. (b) Questions by the Court
s. Witnesses who cannot be called under section 34B of the Tanzania Evidence Act. Either
because they are too far or unavailable. So, there are guidance on how you treat their
evidence
Stage Four: Close of Prosecution Case
A judge cannot close the case. It is the prosecution which does that. The law does not allow
judges to close the case at all and this is very unfortunate. The defence counsel will plead there
is not case to answer and the judge will have to determine that.
Stage Five: The ruling whether there is a case to answer. After the presentation, the judge
makes the ruling on whether there is or there is not the case.
Stage Six: Case for Defence

a. Accused’s Defence
b. Additional witnesses. This depends on the proceedings of the case and the nature of the
evidence, etc. The Court can call witnesses or parties may also call for additional
witnesses. For example, you might have an important admissible document but the
person who drew it needs to be actually available to testify.

c. Lies of accused person. So, what to do with this? Mtenga has an excellent work on this.
Stage Seven: Close of Hearing
a. Close of the defence Case
b. Summing up of a case to the assessors.
c. Misdirecting or non-directing the assessors. What happens?
d. Judge influencing assessors. The judge should not sum up his case in a way that will
influence assessors to take opinion on a certain direction. The judge needs to state the
summary in a neutral approach as possible and which is not judgmental. The judge’s
summary should be neutral.
e. Assessor’s opinion. The assessors will deliberate and give their finding.

f. Assessor who did not participate in whole trial.

Stage Eight: Judgment Writing
a. Considering defence and prosecution cases
b. Court to rely on adduced evidence only. The court cannot go beyond what was adduced.
c. Contradictions of witnesses

13
Nicksoni Filbert Notes (unedited)
 d. Obligation to enter conviction
e. Obligation to enter conviction
f. Substitution of conviction in cognate offences—similar offences. For example, not being
accused of murder but guilty of manslaughter. Read the BENCH Books. See also the
summary of cases by Twaib, Chipeta and Mtenga (on guidelines for the prosecutor).
Only documents tendered to court become exhibits. Document do not go to court on
their own. They are brought by witnesses. These can be cross-examined (witnesses) on
the veracity of what they say. The discovery can happen at this stage. On the first
hearing, the court will always want the documents to be submitted.
g. Alternative verdicts. How do you enter them?
Stage Nine: Mitigation and Sentencing
a. First offenders
b. Assessing mitigation and aggravating factors.
Skills for an advocate to have: listening skills, drafting skills, recording skills, persuasive skills,
questioning skills, interview skills, writing and research skills, counseling and advice skills,

Is there a difference between pre-trial and pre-litigation skills?

For pre-trial skills, an advocate will need interview skills, counseling skills,

14
Nicksoni Filbert Notes (unedited)
 CLIENT INTERVIEW, COUNSELING, RESEARCH AND DOCUMENTATION
9 February 2021
Pre-Litigation Phase
When you meet the client, there is an organisational framework. It has about three aspects:
interviewing skills, counseling skills and establishing advocate-client relationship.
A proper organisational framework would require you to reserve special rooms for interviews in
your chambers. Try as much to have a room that is welcoming and the client will see you as a
professional friend. Establish that you are a professional and not the friend to gossip about. The
environment should be business like. You can inform him on the rules governing the interview
such things as confidentiality, keeping of documents, speaking the truth, etc. Thus, when you
go to the interview, you must be well organised. You also need to be hospitable like having
drinks in place, introduction of identities of parties which you need to verify sometimes. Of
course you are not supposed to inform the client that you are inspecting his identity. These are
all preliminaries.

The first stage:

1. Meeting the client:
(a) Organisational framework
(b) Client interview: study his documents in advance, take some notes and make a
checklist of questions to be clarified. In taking notes, you need to inform him that
you will be taking notes for questions and clarifications. You need to also tell her or
him to mention the time when certain actions occurred or even the time frame if
they are not as specific. People always cannot lie about the time and the place they
were. Once you have obtained a picture from the story, you can tell them to stop
and summarise the facts. But you can actually assist them in summarizing the
problem and close the interview. For example, if they told you they have
documents, you will ask where the documents are. And most of the questions here
are leading questions or open-format questions. Leading questions can sometimes
be problematic in the course of establishing the truth. Where, why, how are the
methods. So, one can choose the way one responds back. Use open questions rather
like you have told me this, what do you mean? This will be like examination in chief.
If they mentioned people, you will have to ask the client to allow you to interview
them, keep the copies of documents with the originals retained by the clients
securely, etc. Do not be tempted to simply give advice quickly. There are things you
need to do first. First, establish the advocate-client relationship. First, you are
supposed to do two kinds of checks: (a) competence check, whether you are

15
Nicksoni Filbert Notes (unedited)
 competent to handle the matter; (b) conflict check, looking whether there is a
conflict of interest. Did the client say anything about the adversary to whom you are
related? You can decline the case or recommend the client to another advocate or if
they accept the disclosed interest and accept you to continue with the case.
Conflicts are of different types and kinds. It can be a client in the past. (c) Time bar
check (limitations of time), make sure that the matter is within limitations. See thus
the Law of Limitation Act Cap 89 RE 2019.
(c) Three essential skills are: interviewing skills (listening skill and questioning skills);
advise or counselling skills (Basic information – KYC, conflict of interest check, time
bar).
(d) Retainer agreement Skills (Remuneration)? This should immediately come after you
have just made your first interview and gathered the facts from your client. A
retainer agreement is a standard agreement between you and the client with five
elements of a standard contract (a) parties, if companies, you will have to check
their constitutive documents and capacity). For legal persons, you need to see what
their constitutive documents stipulate on who has the capacity. For individual
persons, you just need to exercise reasonable care; (b) identify the subject matter of
the contract. It can be a contract matter and its all matters related thereto; (c)
consideration, mention your fees very clearly and make reference to the Advocates
Remuneration Order. How much the client will pay and the stages upon which such
certain amounts will be paid. Many advocates always want their money to be paid at
once in full. However, should that be the case, the money needs to be put in a trust
account authorised by the client. You will keep this account but you will not
withdraw money from it without the client’s permission. If this money is not all
used, it will be returned back to the client. To misuse the client’s account is a high
professional misconduct. You can charge hourly and do not pad up hours which is
professional negligence; (d) terms and conditions, these you need to outline. What
your duties are and how you will undertake them and explain the stages. Then
explain to the client his duties, including appearing as a witness, communicating
with you truthfully about the case, provide contacts of witnesses, assist in any
matter whatsoever to arise during the process, not to communicate with the court
or the other party without your approval, and tell them the rules that guide you in
service delivery. Conclude on what conditions you can withdraw and how the client
also can withdraw. Thus, services must be well identified and their limitations. It can
be for trial case only, etc. And inform him of his rights; (e) execution or attestation of
the document, it being properly signed and witnessed. Lastly, you will open the class
file in which you put all the documents and their list. You also share it with you
applicant. The file has to contain the identification of the client. With all these, you
will have finished the first stage number one—meeting the client.

16
Nicksoni Filbert Notes (unedited)
 2. Research the Facts, Law, and Case analysis (and documentation).
a. Mastery of the Factual Detail. Research is foundational because you will have to
master the factual details of the case. Establish a system of collecting facts especially
in chronological order. What happened on what date. You should have a list of
receipts or delivery receipts for documents or for those you sent from your office.
Have a register that is dated.
b. Fact management. You need to establish a list of sources such as witnesses,
documents, real evidence like objects damaged, artifacts, paintings, electronic
evidence, admissions, expert witnesses (insurance companies in case of accidents,
doctors, these might appear in case), judicial notice. Also make some notes on
information gathered, it can be traffic report upon which you have to write notes on
what you saw from the document. The same for other documents whether as
medical, etc. These will help you later to recall what is wrong with the document.
Record and file information gathered from each source.
c. Essential skills here are: Fact management skills (any fact you think is at issue or
disputed), research skills, identification of factual issues—Order XIV.
d. Legal research. Here we establish the law applicable to your matter. Then you need
to make the library or literature research in order to establish statutory sources,
case law (try as much as possible here to mention the court and its jurisdiction),
making some notes on information gathered (just like we did on factual information.
Write why you have taken this case in relation to your client’s case), and recording
and filing information gathered from each source. See Twaibu’s book on list of case
law well summarised on these matters. Essential skills here is identification of legal
issues and research skills.
e. The Table: Research on Facts, Law and Case Analysis (Case Analysis—Law, Facts,
Evidence & Procedure.
Legal Elements Facts of the Case Evidence to Support Evidence for Other Definition of any
Client. You can have Side or Not Yet issues between the
primary and available (discovery) parties
secondary evidence
and from which you
can calculate the
chances of your
success.

Existence of
contract

17
Nicksoni Filbert Notes (unedited)
Agency

Express Terms

Implied terms (they

can be implied by
law, for example to
ameliorate caveat
emptor, like
disclosing latent
defects, this is in
contract). In
business,
commercial practice
can imply certain
terms

Performance

Breaches

Causation of Loss

Foreseeability

In case you have copies only, that’s secondary evidence and you will have to deal with issues of
admissibility of evidence. How do you establish the contract? It can be by implications or oral
contracts, see section 64 of the Land Act.
Case Analysis
We want to explain the foundation of case analysis. It is a set of techniques to help the fact
finder identify reasons to prefer one set of facts to another. Facts are tricky. So, it is a process
that enable the advocate to:
a. To identify legal issues

b. To identify all possible relevant facts and

c. To deliver persuasive argument. You need a theory of persuasion such that even when
facts are similar, the conclusion should favour you. One of the art of doing so is by
repetition—telling them what you are going to tell them, tell them and tell them what
you told them. Make the IRAC.

18
Nicksoni Filbert Notes (unedited)
The fact finder is the judge who has to admit certain facts as true or correct. The person making
the persuasive argument is the advocate. We intend to assist the fact finder to see which facts
are correct with evidence and logic.
Case Theory: is the precise statement of a client position in a case. It is a strategy that will lead
you through the trial, and it needs a short statement to summarise the theory.
Case Theme: Is pithy headline set out in blunt terms the moral power of a client case. Both Case
theory and case theme are relevant tools for case analysis.
Legal Foundation of a Case Theory
Every factual dispute has at least two versions of the matter to be told or even more versions.
The trial process is about sourcing out the reliable and the accurate factual material apart from
lies and evasions. It is about evaluating character and motivation and making judgment and
predictions about human behaviour not about law. Examination, cross-examination and
rehabilitation all intend to ensure and test the veracity of facts adduced as many are fake. The
documents will only become exhibits when they are admitted by the fact finder. The legal
foundation of a case theory will help you to achieve veracity of what actually happened
factually from the garbage of facts supplied.
The foundation tools are: (a) the legal framework or applicable law; (b) Issues analysis; (c)
chronology; (d) cast of characters; (e) create a full issue analysis.
Issues analysis means your IRAC. Look at the facts from both sides and the laws applicable for
each facts and make the conclusion. Then make analysis and veracity and reliability of your
witnesses and give the conclusion whether you client wins, looses, or 50/50. Do this for all
issues. And then, what is your strategy if you have 50% chances of succeeding? After doing that,
you need correct chronology of events as it identifies what happened, at what time and
probably at what place. You look at your client’s statement, and the evidence both oral and
documentary and you can say that your client’s case is convincing or not. Chronology will
inform you whether you have good or bad facts and how to treat and deal with them. In case
an accountant is dismissed for financial problems of the company, an accountant can exonerate
himself by saying that the process upon which the transactions are approved involves several
processes or stages or decision making. In this way, you spread your responsibility.
Cast of characters means those involved in the whole factual situation. Having listed the
characters, identify those in your favour and on what issues and which documents will they
present and so you have to identify the documents in their possession. Finally, you prepare a
full issue analysis—which means for all the issues because we had already dealt with each one
issue before. Finally give a conclusion.
Stage Two
Case Analysis

19
Nicksoni Filbert Notes (unedited)
With legal foundation in place, it is time of evaluating and analysing evidence. That is, in factual
disputes what should compel the fact finder to go one way and not the other. A case should
succeed because:
a. You have set up creative brainstorming session and pulling the facts apart (mind map).
You do this with the team which is dealing with the case. Slowly this will help you to
develop a framework to reason on the issue.
b. Break the material into individual facts. Start analysing all the facts.
c. List the good facts for your case.
d. List the bad facts for your case—your soft under-bed, where the client looses and what
can be the strategy of the other side—which will enlarge the bad facts and minimise
your good facts. So, the two of you play opposite games.
e. To minimise bad facts, make sure the brain storming is clear, distinct, accurate and
comprehensive.
An analysis of good and bad facts
a. Support and (im)prove your good facts.

b. Address the bad facts.

c. Bad facts do not just go away.
d. Bad facts could if you wish be minimised, outflanked, explained or contradicted,
undermined or embraced.
e. Make some hard judgment about some worst facts and best facts.
f. Link key facts to the key questions.

Stage Three: The Theory of the Case – 1

The theory of the case is a narrative and an analytical account – A single paragraph which
summarises the client positions and from which you can determine every action in the trial. It is
the way of verbalizing your scenario of success.
In order to win a case, an advocate must provide a set of facts which show a better
understanding of what happened than that of the opposite party. It means the advocate’s
narrative must be:

a. Accurate
b. Believable (kind of goes with experience)
c. Persuasive

20
Nicksoni Filbert Notes (unedited)
 d. Proper
A Case theory goes beyond the legal language of pleadings and issues. A theory aims at
explaining to the fact finder why he should prefer one story of the case over the other – it is
about the art of persuasion. You need to learn the art of rhetoric—the art of persuasion. One of
the leading rhetorician in Rome was Cicero. The Roman government taught this because it was
leading a republic. The art of rhetoric contains three elements which are: ethos, logos, and
pathos.
Ethos means appealing to the moral side of your audience. You find a way to connect with the
moral side of your audience. We also appeal to the authority of the speaker—respected
advocate with experience and integrity (kind of the qualifications or credentials of the speaker
authorising him to speak); ethos describe a good man who speaks well (integrity).
Logos, we appeal to logic of the audience. It gives reasonable premises and proofs. It develops
ideas with appropriate details a reader can follow the progression of those ideas in a structured
way.
Pathos, it means appealing to an emotional element of your audience. Politicians of this nature
will be called demagogues. Pastors do this often. Pathos appeals to sympathy, empathy. The
other side you can paint them as pathetic, robbers of the disadvantaged persons. Here, you can
raise indignation. Pathos is a very powerful tool but it can be used to manipulate people and so
one needs to be careful. A person using pathos might always use a figurative language to
describe others and invoke the emotions of his audience in an extremely painted manner.
The art of persuasion involves all these three elements. The pathos is always the conclusion.
Here, you do not appeal to law, rather you appeal to that person’s sense of justice, emotions
and indignation. Pathos has nothing to do with logic necessarily. It can go beyond.
Stage Three: The Theory of the Case – 2
The theory of the case works best as three or four sentences paragraph with:
a. Fact component, linked to

b. An emotion component, linked to

c. A legal component.
State Three – The Theory of the Case – 3
A case theory:
a. Is consistence with prevailing legal stature

b. Is consistence of the case that will not change

c. Is consistence with human experience

21
Nicksoni Filbert Notes (unedited)
 d. It generates the emotion in favour of the client story
e. Reveal the true character of the major player
f. Consequently it leads the tribunal to a right and fair results, which happens to your
desired outcome.
g. Finally, it can be concisely and simply.

Stage Three: The Theory of the Case – 4

Guideline to Developing a Case Theory: to develop the theory of the case, you must answer
three questions:
a. What occurred?
b. Why it occurred?
c. Who should pay for it?

To develop a case theory, you have to undertake the following process:

a. Construct a factual chronology of the case:
b. Analyse the case from ….
Stage Three: The Theory of the case – 5
The advantage of the theory of the case to the advocate:

a. It directs the investigation

b. Direct the pre-trial preparation and practice (witness and identification of issues).
c. It places all the witness in the context of your case.
d. It helps to develop or limit the scope of cross examination.
e. It serves as the yard stick against all new information in case they can be judged.
f. During oral submission, you might choose to open the pleadings but you must close with
the theory of the case.
An example of the theory of the case in the Accountant scenario: The accountant has abused or
misused his books of accounts. He did that, however, because the board has misused the
money and have in consequences forced the accountant to take the approach he has taken.
Thus, the responsibility lies with the board, not with the account. The case should rule in favour
of the accountant. Thus, with this paragraph in mind, you can develop your framework clearly
and proceed successfully with your case.
Stage Four: The Case Theme

22
Nicksoni Filbert Notes (unedited)
The case theme is the word, phrase or simple sentence or statement which captures the
controlling or dominant emotion and/or reality of the theory of the case.
1. The case theme must be easily remembered as you want to re-enforce your theory of
the case in the judge’s mind.
2. During the trial when theme is restated, it quickly re-orient the trial to your case and
your theory.
3. In addition, the theme forces the other side to argue against your theory rather than
only argue their own side of the case.
4. Example: Dangerous incompetents were looking for an escape goat. This theme can be
repeated again and again. The theme captures the injustice and the entitlement your
client has. Thus, the case theory catches the logos; while the theme catches the pathos.
All this is structured manipulation.

23
Nicksoni Filbert Notes (unedited)
 PRE-TRIAL DISCOVERY
The Issue of Discovery
Although it is court-controlled, it is the parties that introduce the documents. The Law Reform
Commission has recommended that this part be emphasised here because it is always forgotten
by the advocates and the judges.
1. Inquiry at first hearing of the case.
2. The party’s right to know the nature of its opponent’s case (pleadings, interrogatories,
discovery of documents, inspection of document, etc). You can only defend yourself
when you understand the case against you. The proper forum for that is the court of
law, which allows for a mediated legal battle.
3. Interrogatories.

4. Discovery of documents.
5. Inspection of documents.
6. Other methods (impounding orders, E-Discovery, depositions, etc.).
Literature:
a. Mulla’s Code of Civil Procedure, 1908.

b. Spry Civil Procedure in East Africa.

c. Chipeta B.D, Civil Procedure in Tanzania (DUP, UDSM, 2003).
d. Statutes
Examination of Parties
It is the court’s duty to frame issues, O. 13 R. 5 at the first hearing and this is the second PTC.
The Court will frame the issues by examining the parties. It will consider all the witnesses and
evidence. The parties might propose some issues, but the court will frame therefrom.
Party’s Right to know the nature of Its opponent’s case
What is the basis of this right? Where does it arise from? It arises as part of the right to a fair
hearing under Article 13(6)(a). Knowledge is important.

Interrogatories
Chipeta defines the term discovery to be: certain processes by which a party to a civil cause or
matter is enabled to obtain from the opposite party answers on oath to questions as to the
facts in dispute between them and to obtain information as to, and production of, the
documents relevant to the dispute, for the purpose of preparing for the trial of the case and of

24
Nicksoni Filbert Notes (unedited)
obtaining a final judgment.” You are allowed to make discoveries because you can know that
certain documents are with the other party and has not produced them. So, you will prepare a
list of documents and ask the court to order the other party to produce them. So, you will
follow or ask for the order of discovery in order to obtain information or documents. This also
shows the importance of being fully prepared to argue for your case.

The purpose of discovery

The purpose of discovery therefore is to make the other party disclose the existence of
documents by the party applying for such discovery. The term inspection here simply means
inspection of documents which have been disclosed by the opposite party at the instance of the
other party for discovery. This is still according to Chipeta.

Interrogatories
The term refers to questions formed by a party to require his opponent to answer on oath such
questions relating to the matter in question in the suit between the parties as may be necessary
for disclosing fairly of the cause or matter for saving costs, regard being had to any offer by the
party sought to be interrogated to deliver particulars or make admission or produce
documents.
ODGERS “The object of interrogating is twofold: first, to obtain admissions to facilitate the
proof of your own case; secondly, to ascertain, so far as you may, the case of your opponent.
There is therefore some art required in drawing interrogatories.” So interrogatories are actually
discovery by way of questions. If you ask them whether they have a question, that’s an
admission and you might not go with it to the trial. But if they refuse, you know that issue might
go to the trial.
Applicable Provisions
Order XII of the CPC
Case Law: Not mandatory, discretionary process
See D’Souza v Ferrao (1969) E.A 1000, the court dealt with the considerations which a court
must bear in mind in granting or refusing to grant leave to deliver interrogatories.
Aggarwa v Official Receiver, EA.
Observation by the Law Reform Commission of Tanzania. In 2013, the Report titled Report of
the Comprehensive Review of Civil Justice System in Tanzania. It stated: “There are provisions in
the CPC which have not been effectively used by the courts to speed up the disposal of civil
cases. These provisions are covered from Order X to Order XIV of the CPC.

25
Nicksoni Filbert Notes (unedited)
 (i) Examination of parties at the first hearing of the suit to ascertain from each party or his
advocate whether he admits or denies such allegations of facts as are made in the
plaint or written statement [Order X Rule 1].
(ii) Discovery and inspection under ORDER XI whereby the plaintiff or defendant, by leave
of the court, delivers interrogatories in writing for the examination of the opposite
parties or any one or more of such parties.
Application for Discovery of documents
Order 11 rule 10.
Whilst interrogatories may be defined as a discovery of facts; there is a procedure in the CPC
for discovery of documents under Rule 10 of Order 11). Any part may, without filing an
affidavit, apply to the court for an order directing any other party to any suit to make discovery.
That is, to disclose, on oath, any of the documents which are or have been in his possession or
power, relating to any matter in question in such suit. But to do this, you need to really have
prepared yourself very well through case analysis, its table and case theory upon which you will
discover what is missing in terms of documents.

Objections to the Procedure

Order XII rule 11
Should a party who has been ordered to make discoveries object to make such discoveries, he
must file an affidavit stating which documents mentioned in the order he objects to produce
and on what grounds. These grounds can be:
a. Where the document in question is a public document and whose disclosure would be
injurious to State interests.
b. Where the document in question is a communication between a party and his advocate.
Because of the rule of confidentiality. (Private information cannot be discovered in this
context).
c. Where the document in question consists exclusively of the party’s own case or title. A
party resisting disclosure or discovery on any of these grounds must do so in the
affidavit of documents must state the grounds or grounds of the objection. But if in
court, he does not use it, then the other party can object later.
Statutory Bar to Production of Documents, section 132 of TEA.
It prohibits the production in evidence of the content of any document forming part of
unpublished official records or communications received by a public officer in the course of his
duty where the Minister has certified that he has examined the contents of such document and
that he is of the opinion that the production of it would be prejudicial to the public interest,

26
Nicksoni Filbert Notes (unedited)
either by reason of the contents of it or of the fact that it belongs to a class which, on grounds
of public policy, should be withheld from such production.
Inspection as a Consequence of Admission
Once a party has made discovery of documents in accordance with the provisions discussed
above, he must allow that other party to inspect the documents and make copies where
necessary. The inspecting party will peruse the document in question and take note of any
materials which he thinks will assist him in the trial.
Notice to Produce
In addition to the provisions regarding the discovery of document, every party to a suit is
entitled, at any time, to give notice to any other party in whose pleadings or affidavits reference
has been made to any document, to produce such document for inspection by the party who
has given such notice, or of his advocate, and to allow him or them to take copies of them. This
is known as “notice to produce”, Order XIII. Once a party denies to submit or produce
documents, the case can actually be dismissed. If it is a defendant, he can be taken to have
admitted.

Other Methods
a. Impounding orders
b. E-discovery
c. Depositions, here you take the evidence of the party before trial through a court
application from the other party.

27
Nicksoni Filbert Notes (unedited)
 Settlement out of Court
10 February 2021
Dr. Zakayo N. Lukumay
There is a lot of debate on whether we use ADR or Another Dispute Resolution Mechanisms
(ADRM). Thus, settlement out of court is better. The Constitution, the Arbitration Act and
Regulations form part of the legal framework for settlement out of court. The Arbitration Act
amended the Civil Procedure Code, Criminal Procedure Code and several other laws. Before this
Act, procedure for settlement out of court was done on an ad hoc basis. But ADR as is called,
has to commence once the pleadings are instituted. It entailed that a suit has to be instituted
before ADR or resolution out of court could be invoked. Once the PTC is conducted, the trial
judge or magistrate would refer the matter to the mediation centre before another judge or
magistrate on a time given. And when the dispute is finalized, then that is the end of the case.
Where the case fails, the second PTC is held and the dispute proceeds to full trial. This is court-
annexed mediation process. There also is still another window by which parties, even after
filing pleadings, can request the court to settle the matter out of court where there is a
clause—a dispute resolution clause—a clause allowing parties to a dispute to refer the matter
to an mediator or arbitrator. One of the parties to the case, can ask for the proceedings to be
stayed for the case to be decided or set out of court. There is no such a case where such a
request has ever been denied.
The new development now brought by this Arbitration Act 2020 which repealed the old
Arbitration Act in use for seven decades. It introduced settlement out of court before pleadings
are taken to the court of law. In other words, it is now formal and now legal that parties may
and actually they are obliged to attempt to settle the dispute out of court before referring the
matter to the court of law. As lawyers now, once you get a complaint from a client, you do not
quickly start preparing pleadings. Rather, you may start writing a demand notice to the other
party. But as you are doing that, think of settling the matter out of court. Share the idea with
the other party. This is now why it moves from being alternative dispute resolution to being a
settlement out of court as there is no alternative here or any option. The only option you have
is which mechanism is suitable for this dispute. We have experts in early evaluation,
adjudication before an adjudicator who determines who is right and who is liable; you also have
mediation, reconciliation, etc. It now depends on the party and his professional advising. We
are being made professional legal advisers here and experts as far as settlement out of court is
concerned. The concept of rushing to the court of law has now been minimised by the
amendments as seen in the new law.
The proponent of the settlement out of court has been the High Court Commercial Division
whose rules of procedures have largely relied on or insisted on the settlement out court by the
parties to the dispute. There is no chances in which the court of law would deny parties a
settlement out of court.

28
Nicksoni Filbert Notes (unedited)
The Nature of Conflict
The concept of conflict management trough ADR has introduced a new mechanism of dispute
resolution that is non-adversarial in nature. A dispute is basically ‘lis enter partes’ and it can
escalate if not managed. This is opposed to dispute resolution as it focuses on the prevention
than its cure. It is better to advice your clients to manage their conflicts in a way that tries to
avoid adversarial conflicts.
When drafting an agreement, you draft a dispute resolution clause and parties will strive to
abide by the terms of the contract and that is the proper time to manage conflicts. Conflicts
occur when there is non-compliance with the terms of the agreement. Once there are
indicators of the conflict or dispute, there should be a quick intervention before it escalates to
something uncontrollable until you employ one of the settlement mechanisms. Thus, you can
have a contract manager for each contract and his duty is to ensure that there is maximum
compliance and if there is anything likely to grow into a conflict, he should assist.
Brainstorm
What is a dispute and how is it different from a conflict. Are all conflicts harmful? In other
words, is there any positive side of a conflict? Why managing a conflict or dispute? Which
appropriate mechanisms can be used to manage or resolve or settle disputes? Do you have a
conflict in a dispute or dispute in a conflict? Which one is larger than the other? And what is the
justification?
So, in every dispute there is an underlying conflict. Once a management expert is confronted
with a conflict, you have to look for a dispute. The dispute is for example when you go to the
court of law for marriage issues—you might be looking for factors to show the marriage is
irreparably broken. Thus, it is the conflict that gives rise to a dispute. Lukumay believes that if
you have for good relationships either in business, partnership, marriage, working environment
or in this class, you need the management of conflict. In other words, you make sure that once
there is an issue or a problem, you look for appropriate means or methods to manage issues. It
is a dispute that takes a person to a court of law because it is about determination of rights and
duties takes place. This is because parties will have issues to be cleared.
Do you resolve a dispute or settle it? The dispute is to be settled because each one has gotten
his rights. But will the parties greet each other once settled? So when you settle, it is not
necessarily that you have resolved the conflict or issues. When the conflict escalates, the
manager can call the partners to a table and they even can call a mediator to resolve issues.
Issue might be the benefits of being, let’s say, a senior partner. How do you resolve between
the two conflict interests. The dispute has arose out the two conflicting interests, where several
wants to be senior partners. This can be a source of conflict or dispute. So, you need to manage
yourselves even before dealing with the cases. There is also conflict over client’s management.
The senior partner is the one that divides the cases. He can take big cases that involves a lot of
financial outcomes.

29
Nicksoni Filbert Notes (unedited)
If you can determine the underlying issue—it is interest. Now, how do you make sure that each
partner gets benefits he will be satisfied with? If you manage to resolve the underlying issues,
then you have resolved the conflict. At the end, partners will like each other and help each
other. From this discussion, you have appreciated the difference between settlement and
resolution. When you resolve the underlying issues or factors which cause a conflict to arise
(first you need to get the underlying issue—because this exists in every conflict or dispute), you
have to determine them and resolve or settle them.
Escalation of Conflict
It beings with a simple disagreement. One person is a problem. The problem expands.
Communication stops. Reaction leads to counter-reaction. Open hostility and violence.
Polarization and group violence.
Conflicts are inevitable in our lives. When communications stops, that becomes the oil to fuel
the dispute. In the absence of communication people counter reach and conflicts begin.

a. Conflicts begin with differences

b. Unresolved differences lead to disagreements.
c. Disagreements cause problem
Stages of conflict
a. Tension

b. Confusion; people not knowing what to do.

c. Blaming one another
d. Confrontation follows
e. Quantinuum or circle will continue if not confronted.
Approaches to conflict
Basic concerns that affect how people approach conflict—relationships and goals/mission.
Every approach a person chooses has reasons for it. And there are number of ways people deal
with conflicts. People may decide to engage in a conflict or confront it or disengage. People
resolving a conflict can use either power-and-rights based approaches or Interest-based
approaches (power, rights or interest based approaches). Disputes arise because for example
there is a conflict of interest. Thus, an approach accommodating the interests of the parties is
highly recommendable. They might not get everything, but they can get at least what satisfies
them. Interest based approaches look at satisfying the needs and the interest of the parties,
because after this, the underlying issues can be resolved.
The problem with power based approach.

30
Nicksoni Filbert Notes (unedited)
Rights-based approach, here one says he is the one who deserves. People mostly go to court.
But people come out not greeting each other. The same with power-based approach. Interest-
based approach is better.
One of the causes of conflict is motivational needs—spiritual, financial, family, etc. avoiding,
accommodating, compromising, competing or collaborating can be other means to resolve the
conflict.
Negotiation, mediation, conciliation, arbitration and litigation are the formal mechanisms for
the settlement out of court. Their applications depend on what you want to achieve—is it a
relationship or interests or needs? There is a dispute whether arbitration should be a means of
settling disputes out of court. An arbitration is a way people can formulate their own court
whom they pay to resolve their case. Other mechanisms can be early neutral evaluation, early
neutral case evaluation, fact finding and mini trial.
The Arbitration Act 2020 has also amended the Criminal Procedure Code to introduce
settlement out of court. It is now a law that you can negotiate with the person you have wrong,
especially the matrimonial disputes. The victim and the suspect or accused can seat through a
conciliator and amicably try to resolve their dispute before going to the trial, section 93 of the
Arbitration Act. Conciliation is now part of the criminal procedure.

31
Nicksoni Filbert Notes (unedited)
 Commercial Arbitration
Aderickson H Njunwa
Senior Arbitrator –Tanzania Insurance Ombudsman

10 February 10, 2021

1. Introduction-Arbitration
2. Categories or types (Domestic and International).
3. Nature-forum (Ad hoc and Institutional).
4. Legal Regime (Domestic and International)

5. Common and Essential Aspects of Commercial Arbitration

a. Arbitration agreement
b. Arbitral tribunal
c. Enforcement (of arbitration agreement and arbitration award)
d. Challenging an award

6. Role of the Court in Arbitration

Arbitration is one of the out of court settlement mechanisms. There is currently a paradigm
shift to settle matters out of court.
You must have practiced for 5 years to be an arbitrator or conciliator.
Introduction
Commercial arbitration is a system of assisted dispute resolution by a neutral third party called
arbiter, arbitrator or umpire whose decision is binding on the parties upon their prior
agreement. One of the earliest forms of ADR which is now widely applicable in commercial
dispute resolution for its relative comparative advantages such as privacy and finality of the
proceedings as well as party autonomy. Currently, it is debatable whether it is still a cost
effective system for dispute resolution compared to other modes or litigation in particular.
Arbitration is not necessarily cheap but it is cost effective due to its nature of finality. The
decision of the person you selected is final.

Why do parties go to arbitration?

There can be:
a. Existence of dispute

32
Nicksoni Filbert Notes (unedited)
 b. Mandatory per existing contract or law. The insurance law indicates that a conflict
should be taken to the Insurance Ombudsman whose rules of procedure recognise
means of settling a dispute out of court.
c. Voluntarily due to its comparative advantages such as party autonomy (choose the
arbitrator, the rules, the procedure, etc), privacy, cost effectiveness (partly due to the
finality of the proceedings, flexibility.
Categories
Generally, arbitration can be either domestic or international—depending on the parties
involved and the nature of the dispute itself.
a. Domestic arbitration
This is governed by Section 3A. It becomes domestic when the subject matter of the dispute
and procedure for arbitration are governed by the laws of that country. The cause of action
arose whole or partly in that country. The parties are from the same country by residence or
incorporation. In every dispute, you need to identify whether the dispute is domestic or
international.
b. International arbitration
It is when one of the parties reside out of the country or the subject matter of the dispute
originates abroad. The rules and procedure will different depending in the type of arbitration.
Nature (Forum) of Arbitration
Its nature or forum is categorised into two depending on the type of the forum for the
proceedings, namely Ah Hoc commercial arbitration and institutional arbitration. The question
is where it takes place.
a. Ad Hoc Arbitration
Here the parties and the arbitrators independently determine the procedure, without the
involvement of an arbitral institution. It is temporary in nature constituted for the purpose of
resolving a particular dispute.

b. Institutional arbitration
This is a permanent forum with infrastructure and systems to administer disputes. The
procedures for appointment of arbitrators, composition of the tribunal and the conduct of the
proceedings are determined by the institutional rules. Examples of arbitral institutions include:

h. The Tanzania Center of Arbitration

i. The Tanzania Institute of Arbitrators (TIAarb.)

33
Nicksoni Filbert Notes (unedited)
 j. The National Construction Council of Tanzania
k. The Nairobi Center for International Arbitration
l. Kigali Center for International Arbitration

m. London Court of International Arbitration

n. The international chamber of commerce-international court of arbitration
o. International center for settlement of investment disputes.
Whichever forum you choose, you need to know its implications
Legal Regimes Governing Arbitration

a. Domestic and international regimes

It consists of laws and rules that governing arbitration in Tanzania with particular focus on
procedural aspects, substance of the dispute as well as enforcement of the arbitral award. They
include the Arbitration Act, and the rules, the CPC, PPP Act, Insurance Act and any other law
dealing with arbitration

b. International Legal Regime for Commercial Arbitration

They are of two broad categories depending on the nature of the dispute or subject matter and
the parties thereto:
a. Convention on the Settlement of Investment Disputes between States and Nationals of
Other States, 1966 (The ICSID Convention). It governs resolution of international
investment disputes between states and nationals of other states.
b. The UNCITRAL Model Law on International Commercial Arbitration and the UNCITRAL
arbitration Rules, governing international commercial disputes (between individuals-
nationals of same or different states. See the International Trade Development. They
provide a uniform law and this helps to avoid a dispute regarding which law to apply in
resolving a conflict. The model laws have become the models of so many pieces of
legislation around the world. The Arbitration Act 2020 has taken a lot from the Model
Law. This has been the case so that business persons might have legitimate
expectations. These are statutes in pari materia—so they can be interpreted the same.
NOTE: The former regime is applicable subject to an agreement between states, international
laws and institutional rules. The latter depends on the agreement between parties (prior to or
post-dispute), international law as well as the institutional rules.
Common Essential Aspects on Commercial Arbitration
Arbitration Agreement or Clause

34
Nicksoni Filbert Notes (unedited)
See section 3 of the Arbitration Act; see also Regulation 62 of GN NO. 146/2021. Dispute must
be present or contemplated. An agreement can be in place before or after the dispute arose.
The arbitration agreement must be in writing according to section 8. The rules provide for
certainty. Many decisions have been invalidated for lack of the qualities of an arbitration
agreement. The agreement has to be in writing or noted down. Also series of communications
between parties can infer agreement. Under section 9 severability or separability is one of the
greatest features of the arbitration agreement. In the electricity production agreement, the
Tanzanian team discovered the contract was invalid by operation of the law because it
contradicts Tanzanian laws with respect to procurement regulations. And they wrote to that
effect and cited several cases. The ruling of the tribunal however was that the tribunal has
jurisdiction because the agreement to arbitrate is separate from the main agreement. So the
agreement to arbitrate is separate from the main agreement itself. The invalidity of the main
agreement does not invalidate the arbitration clause. Thus, the agreement to settle is different
or is severed from the main agreement. The agreement to settle is itself a different agreement.
Naturally an umpire comes when arbitrators do not agree together; when they agree, then he is
not needed. So, when an agreement calls for a chairman, is he an umpire also or what? This is
poor drafting. Regulations 22 and 23 of 146 separate between the chairman and the umpire.
These two words cannot be used in the same clause or sentence. An umpire is thus not part of
the proceedings when there is no conflict or misunderstanding between arbitrators.
You cannot rely on the main contract to determine the fate of the arbitral agreement. The
sanctity of the arbitration is regarded as sacrosanct—what you have agreed among yourselves
must be kept faithfully. Drafting an arbitration agreement is an entire course on itself.
Arbitral Tribunal
It is about who presides over the matter. It is about composition, powers and duties of the
arbitrator or tribunal. Composition (appointment, manner, procedure thereof and number of
arbitrators per the agreement of parties, failure whereof, section 18 operates). Powers of the
tribunal include competenz competenz, section 32(1). This is the power of the tribunal to
determine its own power or rule on its own jurisdiction when it is challenged. The law allows
the tribunal to decide on whether it has power or not and make a ruling), appoint experts (legal
advisor/assessors), issues provisional award/interim orders, section 41 and 40. Who will be
arbitrators, how they will be found, the procedures they will follow, their number, manner of
appointment. The number of arbitrators can depend on the nature of the matter, costs
involved, expertise needed. Where there is no agreement on who to preside, the court can
intervene to appoint arbitrator to you. It has duties to be observed under section 35(1). These
include:
(a) To act fairly and impartially as between the parties, giving each party a reasonable
opportunity of putting his case and dealing with that of his opponent.

35
Nicksoni Filbert Notes (unedited)
 (b) Adopting procedures suitable of the circumstances of the particular case, avoiding
unnecessary delay or expense, so as to provide a fair means for the resolution of the
matters to be determined. Never accept an appointment unless you are available and
you have capacity and time.
Enforcement of Arbitral Agreement
An arbitration agreement is said to be sacrosanct—whole and untouchable and which must be
fully respected and adhered to by the parties and courts are enjoined to not interfere. They are
to deal with arbitration at arm’s length.
Therefore, parties may be compelled to submit their dispute to the process of arbitration per
the agreement. Hence, the powers of the court to stay the proceedings upon an application by
a person against whose legal proceedings are instituted in Court, section 13. This happens in
situations where the party to an arbitration agreement is evading going to arbitration and so
the court, by staying the proceedings, it is compelling parties to resort to arbitration or respect
their arbitration agreement—the case of Rwanyatika Masha case, the High Court actually
quashed proceedings for the case to be referred to the arbitration agreements.
The court may refuse the application for stay of proceedings where the arbitration agreement
is null and void, inoperative or incapable of being performed (see Uber Technologies inc. v.
Heller, 2020 SCC 16). All insurance agreement generally have arbitration clauses. In this case,
the uber driver and the uber company itself. The uber contract says the conflict should be
referred to Switzerland. In this case, the driver did not go to the arbitration but went to the
High Court. The Uber company went to court for stay of proceedings and the court ruled in
favour of the company. The driver went to the Supreme Court which ruled in favour of the
driver holding that it was the company in a better position to deposit such huge amount of
money.
When someone sues you, do not apply for stay of proceedings. First answer the main case plus
the suit then.

Arbitral award
It is a final, reasoned decision of an arbitrator with regard to a particular dispute or an issue.
They are of different types depending on what they deal with. For example, interim, provisional
or partial award which can be preservatory order; final order, consent award (all parties
consent to a certain dispute or outcome and want the arbitrator to record it as their consent
award. It is the same like consent judgment where the defendant has accepted the claim. They
have accepted how their decision will be resolved), additional award (where some of the issues
have been left undiscussed or not determined. So, you will have to write a new award).
Elements/Criteria
a. In writing, signed (by all arbitrators and not necessarily the dissenting an arbitrator).

36
Nicksoni Filbert Notes (unedited)
 b. State the date and sit of arbitral award
c. Contain reasons for the award, unless the parties agree to unreasoned award.
d. Not deal with extraneous matters (matters which are outside its jurisdiction or scope.
e. Capable of enforcement (not vague). Parties have the autonomy to demand a certain
kind of award at the end of the proceedings.

Enforcement of arbitral award

This is a debatable and confusing area subject to so much writing. What matters here is
procedure, conditions, and attachments.
You will need to seek leave of the Court by way of an application (High Court) to enforce an
arbitral award under section 68, 71(1) and Regulation 66 of GN 146 of 2021. We need its
enforcement because this is a private matter and it is unfortunately for that matter that there is
no any arbitral institution in commerce with its own enforcement mechanisms or
implementation mechanisms. This system is outside the court system. Enforcement is here to
cause a party to comply with the decision of the arbitral tribunal. So, if the arbitral award is final
as we say, we expect parties to abide by it. But enforcement comes in because some parties
might refuse or be reluctant in complying with the decision of the arbitral tribunal. In this case,
the other party can choose to go to normal legal system for its enforcement. The purpose is to
give it the force of law. Arbitral award is supposed to be self-executing and it is for civilized
persons. Read further sections 68, 73, 83, 94 and with Rule 66 of GN 146 of 2021. There is High
Court Mediation Centre (search for the law of its establishment, where it sets, how it operates,
who leads it and what its powers or mandates are) simply formed to deal with mediation
issues. Thus event the judiciary is pro-ADR.
If the court agrees with you and grants you the leave, the acceptance has the effect of turning
the arbitral award into the judgment of the court and thus other party can be compelled to
abide by. This will then follow a normal process of executing the judgment of the Court. In case
the other party does not want it to be enforced as a judgment of the court, he will have to raise
reasons for that. This will go to our last segment of challenging the arbitral award.
Challenging an arbitral award
Grounds, section 78(2) and Regulation 66 GN 146 of 2021
This was allowed to be the case because there might have been some challenges or issues that
are prejudicial to the interest of justice of the other party.

37
Nicksoni Filbert Notes (unedited)
The grounds include, BUT they are not limited to the following: COMPARE and CONTRAST the
Arbitration Cap 15 which is repealed and the Arbitration Act No. 2 of 2020 with respect to the
grounds of challenging an arbitral award.
a. Incapacity to enter into an agreement (doli incapax).
b. Improper representation
c. Invalidity of the arbitration agreement under the governing law or lex situs—the law of
the country where the award was made.
d. Improper notice of appointment of an arbitrator or improperly constituted tribunal.

Orders or Effect
a. Variation-forms part of the award
b. Remittal. It is remitted back to the tribunal or arbitrator to work on certain aspects of it
which were forgotten.
c. Removal or setting aside.
It has always been a technical default for an advocate who allows a gap between enforcement
and challenging the arbitral award. This is because once the court approves it as its own
judgment, you might not be able to challenge it as an arbitral award any longer.
The Role of the Court in Arbitration
a. Enforcement of arbitration agreements (stay of proceedings).

b. Appointment of arbitrators.
c. Issuance of interim orders (preservation of subject matter).
d. Directing and or guiding arbitrators (by way of reference, through a petition, before or
during arbitration—existence of question of law).
e. Supervising arbitration process (setting aside and or remitting an award).
f. Enforcing arbitration award – procedures for extensive discussion. See the case Symbion
Power LLC vs. Salem Construction Limited, Misc. 12 of 2015.
Engage with the chartered institute of arbitrators

References
1. Mashamba, C. Arbitration Law and Practice in Tanzania, 2015.
2. Georges R, Delamue, ICSID Arbitration Proceedings: Practical Aspects, 5 Pace L.
3. Clayton Utz, A Guide to International Arbitration, 2012.

38
Nicksoni Filbert Notes (unedited)
Read also
The Arbitration Act; its regulations; The High Court (Commercial Division) Procedure Rules,
2012 GN 250/2012 and the High Court (Commercial Division) Procedure (Amendment) Rules
GN. 107 of 2019; The UNICITRAL Model Law on International Commercial Arbitration; The ICSID
Convention.
QUIZ Identify three situations or circumstances where an Arbitrator could make an award
which is not enforceable.

39
Nicksoni Filbert Notes (unedited)
 Dr. Lukumay
Avoidance becomes unhealthy when it becomes a patterned behaviour or norm. Another way
of looking at approaches is whether one can flight or fight. Fighting can be through adversarial
power-based and rights-based approaches using persuasion.
Fix Conflict
Instead of flight or fight, conflict should be better be fixed. There are many approach to fixing
conflicts. It can be Christian, traditional, religious, combat, cosmic powers, Islamic approaches,
Take the Christian approach which is Mathew 7:3-5, 18:15-17. These texts consider negotiation,
mediation and arbitration. So, there are five biblical principles and the main one is “be
reconciled.”
For Islam see Surat Nisaa 4:35, 49:10, 9.

Styles of Managing Conflict

a. Avoiding
b. Accommodating
c. Compromising
d. Competing

e. Collaborating

40
Nicksoni Filbert Notes (unedited)
NEGOTIATION
A good negotiating outcome
It is a talking or discussion among parties in a bid to resolve the dispute among them. It is
better than alternatives away from the table. It satisfies interests. It is the best among many
options. It achieves a legitimate outcome. It is efficient process as it requires good
communication. It has realistic commitments as it is likely to comply and easy to implement,
unlike in arbitration where non-compliance can be a problem and can result into even litigation.
It leaves parties with a good working relationship.
Principles of negotiation
a. Interest-needs
b. Alternatives

c. Options
d. Standards and criteria (like doing window shopping and comparing qualities).
e. Communication (you need to be a good communicator because negotiation is all about
talking. You also need to be an active listener and speaker). Here you also need
competence on the subject matter and also the question of language command.
f. Relationship
g. Agreement and or commitment
The goals of negotiation
Before you go to negotiation, you need to decide on what your principles are. Some have
argued that the reason to negotiate is to produce something better than the results that you
can obtain without negotiation. The goal of negotiation is to obtain a satisfactory outcome for
everyone. You also need a right attitude and high integrity, in addition to having a good skills.
The Negotiation Diamond
Agenda – a joint starting point (this is a result of consultation and research where you will be
able to get good points to formulate an agenda); ask and listen; argumentation; disagreement;
identification of disagreements; end of argumentation; brainstorming of ideas; making deals,
agreement.
Negotiation Skills
To be an excellent negotiator, you need these core skills:

a. Persuasive

41
Nicksoni Filbert Notes (unedited)
 b. Communicator
c. Listener
d. Questioning (types of questions matter. Open ended questions—those questions
seeking for more clarification are good. Leading questions are not good because at the
end it becomes your story and not his and so you will not solicit a better deal from the
other side).
e. Master of facts (this indicates that you need to really real read).
f. Emotional intelligent (handling yours and theirs).

g. Creativity
The negotiator also needs to be:
a. Self-aware
b. Confident
c. Well prepared

d. Lateral thinker
e. Flexible
f. Target focused
g. Intelligent
h. Eloquent

i. Good prioritizer
j. You really need to separate people from the problem. The purpose of negotiation or
mediation is to help parties to move from polarized interests and/or positions to win-
lose position.
Negotiation Structure
a. Preparation (prepare yourself, your attitude, your character. Prepare also in terms of
reading and researching extensively and effectively. Research also on the other side and
the level of their preparedness, their attitude, culture, age etc).
b. Opening (who should begin here. You need a proper opening statement. Good facts,
evidence, your position, your interest, your offers, reasons for your offer)
c. Discussion
d. Proposals (offer and counter offer).

42
Nicksoni Filbert Notes (unedited)
 e. Conclusion. Confirm everything with the other side. Write all the details and not
anything in the air. Agree on the time frame, agree on allocation of tasks, leave the
other side feeling good.
You also need team work. It is good to use more than one negotiator for better outcome. The
ideal is three members. Allocate the tasks. Choose the recorder. The sitting arrangement must
enable eye contact for effective communication. Break for caucuses whenever it is necessary.

43
Nicksoni Filbert Notes (unedited)
 MEDIATION: SKILLS AND TECHNIQUES
Mediator must have skills and techniques. Mediation is a process in which a neutral party
assists parties involved in a dispute to resolve their conflict in a manner which is agreeable to
them. Mediation is an extended negotiation. It is the second chance negotiation for the parties
to reach an amicable solution but this time with a neutral third party.
Any skill can be learnt and applied with awareness of cultural differences like class gender,
ethnicity, nationality origin, professional background, geography.
FUNCTIONS
a. Serves as neutral facilitator
b. Identifies areas of mutual interest

c. Evaluates options and possible consequences

d. Enforces grounds rules
e. Summarises, restates and prioritises issues
f. Assists in the generation or clarification of options
g. Assisting parties to communicate

h. Encouraging settlement
i. Creating favourable conditions for the parties
j. Facilitating the parties’ negotiations
Five kinds of mediations
a. Settlement mediation (mostly in labour matters)

b. Facilitative mediation (highly recommended)

c. Therapeutic mediation (churches use them).
d. Transformative mediation (changing or transforming their attitude).
e. Evaluative mediation
Process of mediation

a. Introduction
b. Understanding the problem
c. Deeper understanding of the interests and needs of parties

44
Nicksoni Filbert Notes (unedited)
 d. Defining the problem
e. Creating options
f. Evaluating options

g. Settlement or non-settlement
The

45
Nicksoni Filbert Notes (unedited)
 Opening and Closing Statements, Submissions and Objections
11 February 2021
In litigation, whether criminal or civil, there are several stages. These are different depending
on the nature of the action one is taking. You can initiate legal proceedings criminally by
presenting a charge to the court and summoning or arresting the accused person. Or you can
present a petition or a constitution petition or petition for divorce with a plaint initiating a suit
under section 22 of the CPC. You can initiate a substantive application by miscellaneous
application. You file a normal application by chamber summons and affidavit. You can go all the
way to presenting evidence and examining witnesses. Then, the judgment or ruling will be given
thereafter. You may be satisfied, upon which you proceed with the execution; if not satisfied,
you start with the appellate proceedings in the appellate court.

Opening Statement
We are not discussing civil procedure here, rather opening statement as an independent
subject, whether in civil or criminal proceedings. In civil proceedings and especially in the
proceedings in the commercial division of the High Court, after presenting a plaint, according to
rules applicable to this division of the High Court, before calling a witness, the Commercial
Division Rules need the plaintiff or his counsel to give an opening statement (before witnesses
or their statements are given). This is not a written submission. Rather, it is an opening
statement in which you are alerting the court that the plaintiff is claiming against the defendant
for the breach of the contract and is claiming certain damages and hence this case. If it is in
writing, this statement can be half a page. Then the counsel for the defendant, before calling
witnesses, will also give an opening statement. Depending on the nature of the case, the
defendant can say, points one and two I agree, but the rest the defendant disputes. This is also
not a submission. This is according to the Commercial Division Rules. However, we do not apply
the Civil Procedure Code unless there is a gap in the Commercial Division Rules.
Before calling a witness or presenting a witness statement, this statement is given just like a
road map. READ the Rules on opening statements. The presenter had an opportunity to appear
before another cohort and tested their assessment by asking: Under the CPC, when the plaintiff
is about to start calling witnesses, after mediation has failed and have gone to the trial judge,
parties having proposed issues and the court having framed them, what is the next stage?
Before immediately calling witness, what do you do? Order XVIII—Hearing Suits and
Examination of Witnesses. The general rule, the plaintiff has the right to begin; but there is an
exception, Rule 1. Rule 2 allows the party with the right to begin to state his case—that’s what
amounts to the opening statement. After stating the case, the party has to produce the
evidence in support of the allegation—which means calling prosecution witness to testify. Then,
the other party will follow, stating the case and producing evidence. But the other party has the
right to do three things, had only two. Stating the case, producing evidence and addressing the
court. The law that he who alleges must prove is the law of evidence, but according to the law

46
Nicksoni Filbert Notes (unedited)
of procedure, whether criminal or civil, this can vary in terms of procedure. Opening statement
is before calling evidence or witnesses.
Order XVIII has taught us that at the end after producing evidence, there is addressing the
court—in practice lawyers call it final written submission or final submission but the law calls it
final address. What is called address is what we call final submission and it can be orally or in
written form. However, the authority is Order XVIII Rule 2. This is a closing statement.
The fundamental question is who has the right to begin in addressing the court when all parties
have presented their evidence and witnesses? Submissions are statements that a party gives to
court analysing the pleading, evidence and law to convince the judge or magistrate to decide in
favour of his or her client. It is the defendant who has the right to begin his closing statement,
unlike in opening statement where the plaintiff begins, Rule 2(2). This is according to CPC and
not the law of evidence.
He asked for a revision that the trial magistrate in the District Court erred in law and in fact
after revising the decision of the Primary Court after 12 months (see the Magistrates Court Act).
When you concede, then you have the right to begin the closing statement. When the
exception applies in Rule 1, where for example, he admits the facts, he will have to start, too, as
well.
Submissions can be dispensed with when there is no case to answer under section 230 of the
Criminal Procedure Act. In legal practice, we have many unwritten parts of the law. Under
section 230, the law does not say that the accused or his advocate will be called to make a
submission of no case to answer. But through case law, the accused has the right to address the
court on the submission of no case to answer. Then, the Republic will respond and the
magistrate or judge will invoke section 230 on whether there is case to answer or not to
answer. This is an unwritten law. The law is found in courts and not Acts of parliament
(according to a certain school in jurisprudence).
Submissions
After the closure of the prosecution witness and the defence witness, always parties are invited
to make submissions. The Republic will want to convince the court that the accused is guilty;
while the defence will be convincing the court that there is reasonable doubt that the accused
is not guilt. You will have to state the fact, go to the evidence as presented by the prosecution,
look at the law and make your case. The prosecution will do the other way round. These are
called submissions.
Submissions can be made in proceedings, civil or criminal, depending on the nature of the case.
In the Court of Appeal, Submissions are guided, see the Court of Appeal Rules. However,
submissions in other courts are not guided. They will tell you the time frame upon which the
submissions can be made and when the other party can respond. Even the substance of the
submission is guided. You have to restate the facts of the case, issues available, the discussion

47
Nicksoni Filbert Notes (unedited)
of the law, the conclusion given. All these are guided. In other courts, submissions will depend
on the wisdom of the judge or magistrate. Rules 106-107 of the Court of Appeal Rules are clear
here.
Objections
These are of two types, namely preliminary objections and trial objections. Sometimes you can
have appellate objections, those objections on appeal. Preliminary objections are those
objections before the trial. Mukisa Biscuits Case is a famous case on preliminary objections;
there is also a CRDB Case and other, what is important in these cases is: when you raise a
preliminary objection, under CPC Order VIII Rule 2: the defendant has to raise the point of law
within the Written Statement of Defence. Number two: preliminary objections on points of law
are based on pure points of law or ascertaining the facts. When you raise a preliminary
objection in such a way as to bring evidence first to support you first, it is no longer a
preliminary objection. The point of law should be pure-capable of standing on its own without
factual support. A point of law can only stand on ascertained or admitted fact by the other
party. Unless the point of law is pure as such to stand alone, and so it needs to be supported by
evidence, then it is not a point of law. Matters of facts will need evidence and that’s why we
won’t base points of law on them, unless they are ascertained. The authority is the Mukisa
Biscuits Case.
There is another procedure by application through chamber summons and affidavit. See the
Uganda v Commissioner of Prison Exparte Matovu although its principle was somehow
modified in DT Dobie Case. An affidavit must not contain legal advice, conclusion or prayer. An
affidavit to use in court is a substitute of oral evidence. Do not include the preliminary
objections in the counter-affidavit because the affidavit is an affidavit which should not contain
evidence as they will be expunged for offending. The remedy is to file for a separate notice of
preliminary objections. Then you write a small paragraph that on the day when the case will be
brought for a hearing, the defendant intends to raise the preliminary objection on the point of
law and will ask for these prayers.
There is a difference between a suit and an application. The suit starts with a plaint
presentation while the application starts with chamber summons and an affidavit. In a suit, a
preliminary objection will be inserted in the Written Statement of Defence. If you want to raise
the PO on application, you will raise it in a separate notice and not in the counter affidavit as
you will have raised matters of law and evidence and the two cases above will be raised against
you (Experte Matovu and Phantom).
The Court of Appeal Rules state that you have to raise an objection against an appeal or an
application. If it is a preliminary objection on appeal, you have to file a separate notice of
objection by stating clearly what has been violated in that record of appeal—whether it be law,
the section specific and cite the authority (law or case law, books) you will rely upon before the
Court of Appeal. For unreported cases, you need to make copies and attach them in the record.

48
Nicksoni Filbert Notes (unedited)
Then, you are supposed to file and serve the other party not less than three days before the
hearing. In appealing in the Court of Appeal, you use the Memorandum of Appeal and the
Records of Appeal. If you appeal out of time, you will ask for the Certificate of Delay to the
Registrar and give reasons thereof as for example the time used by the High Court in preparing
the records. But preliminary objections are so many.
Rule 111 requires one to state which documents one needs to amend, where it is found the
pages it is located. If these are not followed, the respondent can file a preliminary objection.
Rule 96 would have been applicable by filing supplementary records. The preliminary objection
is responded by the appellant or applicant. These principles apply also in the petition for
divorce or constitutional case. Only do not raise these in the affidavit. Affidavits used in the
Labour Division of the High Court Rules, they can include the law in them. But in other cases,
you cannot put the points of law in the affidavit. These happens when before the actual case is
determined.
When the PO is raised, the defendant will have the right to begin and the plaintiff will have the
right to reply.
There is a difference between a preliminary objection on a point of law and an issue of law. The
Civil Procedure Code, you can simply say a PO is under Order VIII Rule 2; but the issue of law is
order XIV. Issue is a matter or proposition one party alleges its existence as a right and the
other party denies. One says, you have breached contract, and the defendant says I have not
breached the contract. The issue is whether the defendant breached the contract. Each will
bring his own evidence to support one’s case. That is why in a civil trial, you cannot proceed
unless you determine the issue first. Read the Butiku v Butiku Case. This was a matrimonial
case and in matrimonial cases there are only four issues: (a) divorce or separation; (b) division
of matrimonial assets; (c) custody (this can be to any spouse) and maintenance (the father has
the duty unless otherwise) of the issues of marriage; (d) maintenance of the wife. In Butiku v
Butiku, the husband claimed not to love the wife and will choose the snake rather. The wife
said that she never loved the husband. But this is not an issue at all according to these four
criteria. The case is important on evidence and procedure. Where parties are not at issue—the
court should pronounce its judgment forthwith, Order XV Rule 1. In Butiku v Butiku, there was
no issue among the parties that their marriage was irreparably broken down. On this, point,
Biron J issued judgment and order dissolving the marriage immediately, citing the authority of
Order XV Rule 1.
Issues can be of law or of fact. Issues of law under Order XIV and are for the trial. Thus issues
will lead the trial and will require evidence to be resolved; but PO does not need evidence and
once it is resolved, has the effect of finishing the trial without going to the substance of the
case. Trial is a science. When it comes to evidence, you guide your witness to make the
evidence relevant in proving an issue.
Trial or Appellate Objections

49
Nicksoni Filbert Notes (unedited)
When POs have been dismissed and the case starts and opening statements are given and you
start calling witnesses, it means the trial has begun. Objections raised within the trial are
covered here. These objections are based a variety of rules—rules of procedure, evidence and
others. For example: during the Examination of Witnesses, the Examination in Chief, there are
taboos where the counsel for the plaintiff has to avoid. One of them is asking leading questions
during examination in chief. This is prohibited. It is the duty of the defence counsel to raise an
objection before the judge or magistrate. But you have to object with a legal mind as it is an
objection during trial. Another example: production of documentary evidence, section 67
requires documents to be in an original form. But if the contract is a photocopy, you can raise a
trial objection that secondary evidence, a photocopy here, is not allowed unless the procedure
for their admission has been followed. Another example: witness coming with the letter from
the company, is not mentioned or not even the one who wrote the letter, you can object to
this. Trial objections are so many. Section 41 and 44 and RM jurisdiction (it is not an appellate
court). Only the District Court is for the Primary Court decision as its appellate court. These two
courts have original jurisdiction, but the Resident Magistrate Court lacks appellate jurisdiction.
In the past, the RM could conduct revision over the District Court; but where the District Court
is presided over by the Resident magistrate with the same single degree as the Resident
Magistrate Court, the Magistrate Court will not exercise revisional powers over the District
Court.
When the trial objection succeeds, the matter will be rejected and the trial will still go on. Trial
objections are at a trial level, where the court exercises its original jurisdiction. But there can be
appellate objections. The Doctrine of Overriding objective Principle supports Article 107A.
According to the Court of Appeal, being time-barred, the Overriding principle cannot bring you
within time, give the court the jurisdiction it does not have; give it a pecuniary jurisdiction it
does have. If you do not file an appeal with a notice of appeal, the case can be dismissed.
Applications in the High Court and lowers courts—chamber summons supported by an affidavit.
Applications in the Court of Appeal you need notice of motion supported by affidavit.
In deciding, the Court of Appeal said that if the delay was caused by any other good reason
apart from the delay to be supplied with record, the intended appellant must protect himself or
herself by applying for extension of time within which to file an appeal. This is not provided in
the Court of Appeal Rules. You need leave from the High Court to appeal to the Court of
Appeal. If you are denied the leave, you apply second bite to the Court of Appeal. And here if
you have already a certificate of delay and before you get the leave, you need to apply for the
extension of time. This application for time extension, you do not do it at the High Court. This is
in the case law, the unwritten part of the rules. 60 days is the timeline for appealing to the
Court of Appeal: you need memorandum of appeal and the record of appeal. If you have the
record within 60 days, you will file the appeal. However, practice indicates that records of
appeal might delay to be released and you need them to appeal with them as attachments. You
will thus need a certificate of delay and time for preparation of the records is not computed as

50
Nicksoni Filbert Notes (unedited)
part of the delay. But remember you need the leave to appeal with chamber summons and
affidavit before the High Court and which comes after 60 days. In this case, the certificate of
delays is not helpful. So, the better way is to make an application for extension of time in the
Court of Appeal to be allowed to file your appeal pending being granted the leave to appeal.
This is unwritten part of the rules.
Section 5 of the Appellate Jurisdiction Act, in a nutshell, decisions or orders of the High Court
which do not need leave to appeal are under section 5(1). To qualify to have a decision which
does not need leave, the High Court must be exercising its original jurisdiction; it must be under
the Civil Procedure Code; there must be a decree. If you have these three elements under
section 5(1), you do not need leave of the High Court to appeal to the Court of Appeal. If the
decree of the High Court is revisional or appellate, you need leave to appeal. Also cases
originating from the primary court, you only need certificate on a point of law because for
matters of facts, the decision of the High Court on the point of fact is final. Leave is sought
because not everything needs to go to the Court of Appeal. You need sieving.
Read the question of judicial notice under sections 58 and 59 of the Evidence Act. There is a
difference between the powers or jurisdiction of the court and the right of the party to
approach and invoke the powers of the Court. Sometimes one can have the right but fails to
access the court. For example, when you are time barred, you have the right to reach the court
but you have been time-barred and the court will have taken judicial notice of the matter. The
Court can raise this matter or preliminary objection suo mottu, if the defendant does not
exercise his power. So, amendments can be done to the pleadings to include for example, a
preliminary objection or any important matter. But there are circumstances where no one
knows anything until when the judgment has been given. This can be a ground for revision,
appeal, etc.
Task: Majimaji Construction Co Ltd has filed a plaint against Mr. Madongo Kumikumi. According
to the Plaint, it is pleaded that on 1 January 2013, Majimaji Construction Co Ltd entered into a
contract whereby Majimaji Co had to supply 20,000 cab stones to Mr. Madongo within 60 days
from the date of the contract. And thereby Mr. Madongo had to pay a total sum of 20,000, 000
Tshs within 3 days from the date the cab stones were to be supplied. Majimaji Construction Co
supplied 15,000 cab stones on the 16 March 2013 and demanded to be paid the contractual
some of money of 20, 000, 000 Tshs, the demand which was made on 20 September 2020. The
said demand was not heeded by Mr. Madongo Kumikumi. Consequently, Majimaji Construction
Co filed a suit on 30 October 2020 demanding to be paid the sum of 20,000,000 Tshs as
consideration for the supply of the cab stones. As a defence counsel, what will be the content
of the Written Statement of Defence and possible preliminary objections (PO) if any and issues
of law to guide the trial.
You appeal to the court of appeal on point of law when the original case came from the Primary
Court. For points of facts, the High Court is final. However, where the original decision came
from the District Court or Resident Magistrate Court, you only need leave to appeal from the

51
Nicksoni Filbert Notes (unedited)
decision of the High Court to the Court of Appeal, unless there are exceptions of section 5(1) of
the Appellate Jurisdiction Act.
The Bar can request the Bench to conduct a matter in camera, for example. Thus, the bar can
approach the bench. The point of law determination, the High Court’s decision is final on the
matter. For a person to pursue revision, the appellate avenue has been blocked by judicial
process, then the right of revision accrues. This certificate of the point of law for you to go to
the Court of Appeal from the decision of the High Court following the original case from the
Primary Court, must be applied to the High Court. If the High Court rejects it, you cannot appeal
unless you go for revision. Revision is to be done within 60 days. Where revision fails, you can
can pika jungu. This means you have used the normal system and it is now closed, the last
resort is kupika jungu. The purpose is to move the Court of Appeal to act suo mottu. And it is
only the Chief Justice who can ask the Court of Appeal to move suo mottu (you must have the
right citation of the High Court case).
The previous position was that anything coming out of an unqualified practitioner is a nullity.
But the current position, is that what he did is not a nullity because it is for the party innocent.
The decision of the Court of Appeal is not yet given on this issue. But the recent approach
prevails.
When the plaintiff responds to the WSD, he can put a claim and the defendant can put a
counter-claim and the defendant can put a defence to the counter-claim. Order VIII Rule 13.
The plaintiff can raise his preliminary objection, he will put it in the documents of reply to the
WSD. For the counter-claim, it is treated as a new suit and within it you can put your PO as if a
defendant.
When the High Court’s order is not complied, the remedy is to go to the High Court to ask for
the enlargement under section 93 of the CPC. Can one appeal against an interlocutory order?
The answer is no because there are amendments introduced which prohibit that. This is a
general rule. It must be in the Magistrates Court Act. The exception is that you can appeal if the
interlocutory order has the effect of determining the suit or the charge. An injunction is a
holding order. You cannot issue an injunction to demolish. You actually defeat the purpose?
Issues or law or issues of fact are all matters in dispute. An issue is crafted within the dispute. If
not an issue, the court will pronounce the judgment at once. In the CMA, the issues are raised
within the pleadings or opening statements. It does not matter whether those are issues of
facts or issues of law. You have to consult the guidelines and Rules.
Difference between dismissing and striking out. When dismissed, it means it has been
determined on merit. When the case is thrown out on technical points, the case is struck out
but it means you can file it again afresh. But in experience, section 3 of the Law of Limitation
Act allows for the case to be dismissed even when it was not heard for being time barred. This
becomes an exception.

52
Nicksoni Filbert Notes (unedited)
Introducing an issue within the trial is problematic and it is not allowed because it denies the
parties the right to be heard and give them an opportunity to present their case and address
the court. Issues are to guide parties and the court. Parties can raise issues in the course of the
trial but not after final submissions. Court of Appeal Rules and CPC define the meaning of
proceedings. Controlling the proceedings is within the discretion of the court. You cannot
amend or withdraw a pleading when a PO has been raised. These are all unwritten rules. This is
despite the law saying you can amend at any time in the course of trial.
LL.B. not L.L.B. Legal language is different from English language. Learned brother, sister or
friend. The learned counsel is counsel whether 100 or 1.

53
Nicksoni Filbert Notes (unedited)
 EXAMINATION OF WINTESSES AND TENDERING OF DOCUMENTS AND EXHIBITS
12 February 2021
Chuwa
In any trial, there are several stages. In civil trial, the first stage is summons which follows a filed
plaint or application. The second stage is pleadings. Then this is followed by proof of what has
been alleged or disputed. The attention today is on the proof of alleged facts through witnesses
and production of document. The next stage is judgment and the final stage is execution. In
criminal trial, you start with the arrested person being apprehended, this follows a complaint
brought by a complainant. For there to be a criminal offence, a matter must have been brought
to the police. But this complainant does not file the case. It is the police that arrests and seizes
anything connected with the offence. Then there is charge is laid before the court for the
purpose of the District Court, RM Court and in the High Court we call it information, after the
committal proceedings. Then follows proof or disproving of what has been alleged and denied
by the accused. The question is how are you going to prove?
Before examining witnesses, there are issues or matters to be put into consideration. Being an
advocate, you need a considerable power of arguments not only to present your client’s case
but also to demolish your opponent’s case. You need thus a considerable knowledge of human
nature. Thus, advocates need nimble wits. It is an adjective which means having or showing an
ability to think or respond quickly and effectively. A nimble wit person can view a subject from
multiple perspectives and can respond with bewildering rapidity. Regarding preliminary
objections, these can be brought with a notice but sometimes the issues can be brought just on
spot. That’s when you need nimble wits to respond immediately and clearly.
Although the court drama appears to be simple, especially in the perspective of a layman,
important matters need to be accomplished by an advocate before he appears in the court
room. A lot needs to be done before appearing before judge or magistrate. See Trump
Impeachment Proceedings on the ground work to prosecute. If you have been instructed to
represent an accused in a criminal trial, your duty cannot begin at the hearing. Rather, it begins
at the very initial stage of criminal proceedings. How your client was arrested, how he was
identified (if he was not properly identified, you will prepare a defence of alibi, or the
procedure of identification was faulty. And if he was not properly identified and thus you will
know the person who will come to testify that he was properly identified. You will also know
whether the evidence to be used in court will be of a single person or not and whether you
require corroboration, especially where the conditions are not favourable for identification as
night identification. The arresting police officer, was he given enough information for
identification which would not mislead him? Or the item to be produced in courts as exhibits,
how were they seized from the accused? Was the procedure for seizure followed? How was the
exhibits kept? How was your client interrogated? And where was he interrogated? For example,
an arrested person has a time frame to be interviewed).

54
Nicksoni Filbert Notes (unedited)
Likewise, in a civil trial, you must make sure that you read all the documents and consider the
bad facts and good facts, those favouring your client and those not favouring, from the
pleadings. You will have to do case analysis. And if there are bad facts, how will you connect
more evidence, to clear the bad facts? An advocate is required also to have confidence. Never
say I think in court. Express confidence. You will make your humble submission. Confidence is
self-assurance which comes from knowledge. This makes you capable of knowing what to do
and what not to do. If you make good case analysis, you will have knowledge of the facts of the
case, of your witnesses and you will know among your witnesses, which one is the strongest
and which one is the weakest. And because of knowledge, you will know, which documents are
going to prove your case. You will thus be able to determine which witnesses to bring first in
the witness box and which one to spare at the last moment.
After knowing that you have a good case, criminal or civil, before going to court, there are other
matters to consider to strengthen your case. You need to know which factors may affect the
testimony of the witness. Testimony can be oral testimony or documentary. You can have a
good witness in court, but not knowing these factors, your testimony can be affected.
Demeanour is one among the factors affecting testimony. Demeanour is an expression or
reflection of testimony. The way a witness gives evidence is very important in the mind of the
judge and therefore, the trial depends on the impression of the witness. It is important to
consider why a witness is giving evidence in the way he does and what effect is that manner of
giving evidence will be in the mind of the judge. Therefore, the first test of credibility is the
court itself—why is your witness failing to answer or calculating the effect of his answers? Or is
he responding before being asked? How will you dispel unfavourable demeanour. Remember
that for a layman, the court room is not a favourable place, even for advocates.
This will tell you who among your witness is the strongest. Another point to consider is
corroboration. You can have a good case or witness, but you actually need corroboration. In
some instances, cases require corroboration. You need the categories of situations that require
corroboration. For example, circumstantial evidence or evidence of the single witness
identifying an accused in an armed robbery in which the commission of an offence has occurred
during the night. You also need to consider the degree of proving certain cases. In civil cases,
we need the balance of probabilities—that certain facts are properly or improbable to have
occurred. Thus, the advocate must elicit facts from the witness which will convince the judge
that it is probably the events described have occurred. How are cases proved? By
preponderance of probability or beyond reasonable doubt?
You also need to consider the law of evidence which is comprised of two parts: the first is
measurement and determination of the probative force of evidence. How probable the
evidence is. The second part is how you are going to produce that evidence before the court.
For example, your strongest evidence is on documents and you do not know the procedure for
producing documents. You can have good facts but you bring a bad witness to bring evidence.

55
Nicksoni Filbert Notes (unedited)
For example, on medical issues or motor vehicle inspector, it is those who prepared the reports
that come to present evidence.
Another point is how credible is the witness? The test of credibility. The evidence might be
credible but the person producing it might not be credible. You also need to consider how to
discredit a witness and the grounds to use in discrediting the witness?
Also consider in your case, it is normally a fact that documentary evidence is weightier than oral
evidence. You now need to consider the types of evidence you have. These are just hints on
preparation making. It tells you that to win or successfully present your case, it is clear that you
need pre-litigation preparation.
Certain facts cannot stand alone. For example, a dying declaration.
Examination in Chief (EiC)
In any trial, evidence is given in three stages. The first stage is examination in chief where a
person with the burden of proof brings his witness and examine them. It is followed by cross-
examination where the same witness is being cross-examined by the opposite side. And the last
stage is re-examination where the party repairs the damage of cross-examination.
Principles and Techniques
Principles are important to know, but techniques among people differ. Education opens the
door while experience is a good teacher. In examination in chief, the witness must speak from
his own knowledge. Thus, you lead your witness to speak about what he saw, perceived or
heard or seen directly and therefore hearsay evidence is not admissible. The second principle is
that in EiC, leading questions are not allowed. The biggest problem is determining what leading
questions are and why leading questions are not allowed. A leading question is the question
which suggests an answer. They are not allowed because it will be an advocate who is
suggesting an answer to the witness. They are not allowed because the answer given will be
coming from the advocate himself. That means if the answer is recorded, it will be misleading.
The witness is always biased on the person who called him. But for an advocate on the other
side, you need to be quick to object because what is dangerous is the answer which is recorded.
Of course sometimes the leading question can be in your favour you might not necessarily
object to that. Leading questions are allowed in some introductory matters which are not
relevant to the case. For example, the background of the witness, his experience. Sometimes
you ask leading questions on matters not in dispute. Practically, EiC is the most difficult part or
exercise of an advocate. But is the most important one as it has to deal with how you will have
to prove your case.
The first technique in examination in chief is putting your best witness in the witness box first.
The purpose is that the first witness will create a favourable impression in the mind of the judge
at the earliest opportunity. The second purpose is that the first witness will receive the sharpest
and vigorous cross-examination and so he needs to be the strongest one. The second technique

56
Nicksoni Filbert Notes (unedited)
is to serve and bring the last strong witness at last. The last witness will bring a good impression
at the closing in the mind of the judge or magistrate. He will clear most of the doubts which
have been done by other witnesses or the first one. The purpose is to clear contradictions
brought by previous witnesses. The third technique, simple but difficult in practice, call the
witness in successions. Agree or not, a case is nothing but a story telling. It is a post-mortem of
what has happened only that here the victim is alive and is feeling the pinch of the operation.
The court must get the exact story in the order it has happened. That is why you need to call
the witnesses in succession. Each witness must give testimony on a particular fact to build the
story.
The fourth technique, when the witness is in a witness box, because he is giving a story, from
his memory, be careful not to distort his memory. Once you distort it, you give wrong
impression to the court. Do not confuse your witness with dates and events because it is not
easy to remember dates but it is easy to remember events. Start with what is more important.
The fifth technique, In EiC, always be mindful that a witness has something to tell, so do not
interrupt him when he is giving a favourable story, simply because it is not you talking.
Interrupting him might cause him to think that he had done some mishaps. The fewer the
interruptions the better. When leading a witness, no miracles today, the witness must give facts
which are probable. Sixths technique, In examining the witness, he must state first the cause
and the effect (how the pregnancy happened). The story needs to be exhausted. In every event,
there must be cause which is probable.
Seventh technique, do not task the memory of your witness. Eighth technique, And do not
cross examine your own witness as you might puzzle him. There are times you lead a witness
and he appears bewildered, especially where the question is interrupted by the other side with
an objection. And this was not contemplated. When the objection is sustained, you simply need
to be humble. Never react when an objection is upheld by the judge as you will have time later.
When you automatically move to the new question, the witness may stumble. When he
stumbles, you might think he has become stupid and you might tell him to remember well. And
he says that’s what I know and you tell him that was objected. The principle is that when the
witness appears stupid, it is the advocate that has become stupid. Never loose your temper as
it is the worth you should protect at any point in time. The more stupid the witness appears to
be, the more humble the advocate should be. The ninth technique: the questions should not be
intelligible but should be put in a way that their relevance to the case is apparent to the
witness.
Tenth technique, when examining your witness, do not go too fast as the judge will not have
anything to record or you will confuse your witness. So you let him finish his story. And when
the witness has given his answer, do not require him to repeat it (and you think the answer is
correct) because he can vary the answer and this can lead to contradiction. Eleventh technique:
do not ask without an object. Every question must be objective—have an object to achieve in
mind. Do not ask for the sake of asking but to get a response to prove your case. At any point in

57
Nicksoni Filbert Notes (unedited)
time, try to master the law of evidence in the course of examining your witness. This means
that you need to be ready for questions which require inadmissible answers. An example, you
want to give a bank statement or electronic evidence but you know that the other party will
object. So, be read when they object you have the answers from cases and laws. This also needs
preparation. Twelfth technique: when the other party is asking, you need to be attentive,
writing down all the raised points that you will use in cross examination. In court, there is no
hurry although nowadays judges and magistrates want cases move fast. Thirteenth point: try to
determine and know at what point in time to finish and make sure you have elicited every point
from the witness because in re-examination you cannot introduce new evidence. Re-
examination is only limited to matters that arose in cross-examination.
Cross Examination (CE)
CE is the most dangerous one of the three in the examination of witnesses. The first technique:
do not cross examine because the process is very dangerous. It is like a threading machine. You
can open a box you cannot close. Certain questions in EiC, you can reserve them to cross
examination. Lack of cross examination is also fatal. If you have not cross-examined on an
important point, you cannot bring that ground on appeal. This leads us to discuss the purpose
of cross examination. (a) to obtain evidence favourable to your client (it is not examination in
chief that builds the case, but it is mostly cross examination that matters. This is because in
cross examination, the limit is the sky and you can ask anything favourable to your case and the
client, section 7 of the Evidence Act); (b) to weaken or destroy the evidence given by the other
party. This is done by shaking the veracity or truthfulness of the evidence of the other party; (c)
to destroy or shake the credibility of witnesses. The principle says falsity in one thing means
falsity in everything and there are techniques of achieving this. One is to lead a witness on
contradictions. Another way is to show inconsistency of his story and this goes to the probative
force of evidence (the evidence not being probable). In oral evidence you compare what was
said before and what was said later.
And therefore, in cross-examination what we do is to show the court that certain parts of the
story is not true and you show the court what is false and what has been left out and what is
false will destroy the other party’s case. False in one thing will render false in everything. There
is a Latin maxim. Falsus in uno falsus in omnibus. In doing so, you ask questions which might
incriminate the witness. The first rule is that never cross examine because mistakes in cross
examination are irredeemable. A single question in cross examination might be followed by
floodgate of evidence which may overwhelm you. Some questions are left out deliberately in CE
because they can be fatal.
Before cross examining, try to learn the human nature. Try to ask yourself, why is that witness
coming to court? What was the motive behind the witness. Is he simply a police doing his own
job and questions need to be calibrated depending on the person and you definitely need to
understand the motive behind why they give their evidence. That way, you will be able to
discredit them all. In CE do not ask questions which may be adverse to your case. Put your

58
Nicksoni Filbert Notes (unedited)
questions in examination bit by bit, small by small (tunga shanga). Do not ask all at once
aimlessly. Phone stealing example. Another rule, do not put your questions so direct as the
witness might avoid them, especially a smart witness (like a policeman). When making CE, do
not put your eyes away from the witness. Always look at him or her. This is because you are
testing the veracity. When the eyes contact or meet, they translate what is in the minds. Then
use your voice effectively and use the courtroom to create confidence and loss of his. Another
rule, do not cross-examine to confirm the testimony of the EiC, a mistake nowadays advocates
do. Because the court can give him an opportunity to rectify his case and this will be
disadvantageous to your case. Another rule: never be tempted to repeat the questions or
answers after the answer has been given. Another rule: do not cross examine without an
object. Another rule: do not insult the witness by asking scandalous questions and the like
because at any point in time, an advocate is an officer of the Court. Thus, maintain your respect
and that of the other party. Our duty is to convince the court and not otherwise. Another rule:
never insist something impossible. Another Rule: divert the witness attention after you have
obtained what you actually want. Another rule: do not seek for explanation. If possible, get the
yes and no answers. Rule: do not cross examine a witness who has not stated any material facts
against you. Rule: Be careful on smart witness and avoid cross examining them. Always in CE try
to elicit admissions from the witness because a point admitted cannot be taken on appeal.
Rule: never risk a dangerous question (a judge can ask you what you want the witness to
answer by that question). Rule: avoid being stylish as it might not impress the court. Many
techniques you will learn through practice. In cross examination you can ask leading questions.

Re-Examination (RE)
The purpose is to repair the damage caused by the cross-examiner on your witness. In RE, you
do not bring new facts. But there are situations you might give rise to new facts or case or issue
which will require CE. Never allow the second cross-examination. Try only to clear the
confusion and start to repair from where the damage was caused. Leading questions are not
allowed here. In RE, do not argue with a witness. You cannot argue with a witness because he
might think that he has already given his witness. So, you need to have prepared him and make
him aware of the process and your intention. Or when he repeats what he spoke in CE, avoid
that witness because he does not know he made a mistake. After RE, it means you are done
with that witness and you call another. After all of them, the witness will at a certain point go
out when another witness is giving his testimony, otherwise, he will be precluded to give
testimony. Thereafter, the advocate will close the case and the other party will open his case. In
criminal cases, after the prosecution has finished presentation and proof, the accused can raise
an argument of no case to answer in that there is no prima facie case to answer. But if the court
rules there is a case to answer, he will be told his rights and what that entails. Prima facie case
means a case where a reasonable judge directing his mind on the evidence might convict the
accused without defence.

59
Nicksoni Filbert Notes (unedited)
In civil case, after the plaintiff has presented his case, final submissions follow. After final
submissions, in criminal cases, judgment follows. After judgment, in case of conviction, there
will be mitigating and aggravating factors with respect to sentence and punishment. You must
have prepared your witnesses for all these. Prayers in allocutus. Judges and magistrates are
human beings, if the judge let go the convicted person on the basis of prayer in allocutus,, no
one can convict them or appeal against the prayer in allocutus. There can never be appeal on
mitigation factors. You are not allowed to coach your witness but to prepare them. Otherwise,
expect the unexpected in court.
You need to know the categories of witnesses—experts, educated, clever, young, old, tender
age, rich, poor, learned, privileged, men, women, experienced, etc. You need to know the
techniques for examining either of them.
Production of Documents
It is based on two principles. The first one is on the best evidence rule—it is only the original
that is admissible in court. If you do not produce the original, then you need to know how to
produce the secondary evidence. And it must comply with the Law of Evidence Rule. And you
need to know the exceptions applicable to secondary documents. Documents are admitted on
the basis of admissibility and relevance (relevant to the facts in issue). Before producing the
document, make sure that the person producing the evidence, the person tendering the
evidence must be competent. Like a post-mortem report must be tendered by the person so
authorised. A document is admitted or tendered by a witness and not an advocate. The
advocate only leads the witness in giving the evidence contained in the exhibit. When a
document is accepted by the Court, then you lead the witness in the contents of the
documents. There is a case of Godbless Lema that went to the Court of Appeal. Lema won
because those who dispute the elections were voters. The advocate leading them only
indicated that these were voters. The judge saw the IDs to the conclusion of the case. But he
did not admit the IDs as exhibits. Thus, documents can only work as evidence once they are
admitted as exhibits by the court.
When you want to give documents, it must be a person who can respond and be cross-
examined on the documents. For example, in a motor accident, the report of the accident is
prepared by the vehicle inspector and this must be a person appointed by the Minister and his
name gazetted in the Gazette. The same applies to the person who prepares PF3—the laws say
only a medical doctor, not any other person. When documents are tendered as exhibits, they
must be labelled distinctly.

60
Nicksoni Filbert Notes (unedited)
 TENDERING OF DOCUMENTS
Taisamo
He handled an appeal with five grounds. One of them was that the trial magistrate failed to
consider the documentary evidence tendered by the appellant. In the trial court, Taisamo was
acting for the defendant and another counsel was acting for the plaintiff. In examination in
chief, a number of documents were tendered and Taisamo did not object due to the procedure
used to tender the documents. The witness was asked whether he remembered what
happened on certain dates and he said he entered into contract and the contract was tendered
and admitted. Due to lack of objection, the counsel for the plaintiff did not lead his witness to
testify on the contents of the contract. Rather, it was simply tendered and admitted. But
Taisamo was allowed to examine the document. In the course of hearing, the magistrate only
asked one issue to address why there was no objection from Taisamo. And he said that a mere
tendering of document is not sufficient. Only the document was received and not the content
of the document. A good judge or magistrate will not open a document and use it in composing
judgment therefrom until the tendered document is unveiled by the witness to form part of the
record and to ask for leave of the court to use such document. The document being tendered
and admitted does not mean its contents were tendered and accepted as such. That is why the
magistrate did not use them in composing his judgment. After admission of the documents, ask
your witness to testify on the contents of the documents, leading him on each important details
in that contract or document.
Start examining the witness of his expertise and experience and one of such works should be
filing medical examination report. Then you will ask him: in this particular case, what did you
deal with? He will say he filled the medical examination report. You then will ask him: if you see
it, will you recognise it? He will say yes. Then, you ask leave of the Court that the witness to see
and recognise the document. Then, you tell him to look and see if he recognises the document.
He will say this is my writing, signature, etc. Then comes tendering which is technical. You ask
him, what do you want the court to do with this document? He will say, I wish the court to
receive this document and treat it as part and parcel of evidence adduced in court. You will see
if there is objections. So, the court will then receive it and record it as exhibit and make sure it
is recorded. Thereafter, you go to the contents of the document. You will ask the court that you
lead your witness to give details about the content of the exhibit now. For example, who the
victim is, where he was injured, how big was the scar, which instrument was used. Once
contents are over and are in the record of the court, then you are okay. A court is not a mother
to give you what you did not ask for. The document must be in your possession so that it can
make sense to ask your witness whether he will recognise the document. If it is in his
possession, there is no reason to ask that question again. If the judge or magistrate uses such
document whose contents were not testified, then the magistrate will have testified on behalf
of the witness.

61
Nicksoni Filbert Notes (unedited)
 JUDGMENT AND POST-JUDGMENT PRACTICES
It is what happens after judgment. In post judgment practices we will discuss execution process,
appeals and bill of costs. Appeals will be skipped.
Judgment
We have civil and criminal. Section 3 of the CPC defines a judgment to mean a statement given
by a judge or magistrate for a decree or order. The CPA does not define judgment. Is it safe to
say that judgment as defined under the CPC can be the same as for criminal? Section 312 of the
CPA. The section gives the content.
Contents of the Judgment
The judgment must be:

a. Written in the language of the court (Swahili for now).

b. Points for determination. Are issues framed in criminal law? We frame issues in criminal
law only that we do not expressly say whether the accused committed the crime. These
are called point or points of determination. If the charge is one, there is only one point
for determination whether the ..
c. Decision thereon thereof. If you have many counts in a single charge, it means you will
have three points for determination and will have to give decision for each point.
d. Reasons for decision(s). In criminal, it is either a conviction or acquittal. The judgment
has to say if it is either of the two and the sentence under which law and the reasons.

e. Date
f. Signature
What is the difference between the ruling, judgment and decree? When you have a main case
pending and an interlocutory application is sought out of which the court decides, that’s a
ruling. Or there might not be something pending. But there might be something different
where you ask for the revision, that becomes a ruling. A decree comes out of the judgment but
the ruling does not come out of the judgment. The content of the ruling might be different from
the judgment.
Only the decree from the judgment is executed, not the judgment itself. What is the difference?
The decree is that enforceable part of the judgment which is extracted from the judgment. In
the plaint you pray for the reliefs and decree. In the judgment thus you will extract it. So, what
is extracted from the judgment as decree is what you actually had prayed for in your plaint for
the court to give you in your plaint. When the judgment is issued or delivered, a decree is
extracted on the basis of what you had itemized your prayers in the plaint.

62
Nicksoni Filbert Notes (unedited)
Assume there is a contract for the construction of a residential house worth 300, 000, 000 Tshs.
The amount was paid fully. Construction period agreed was January 2018-December 2018. To
date, no construction has been done. The Plaintiff comes to you to give him the reliefs. Assume
he stays in a rented house and he is charged 400,000 monthly. You have prepared your plaint
and at last you have said you pray for the judgment and decree:

a. An order for payment of 300, 000, 000 contractual sum paid to the defendant.
b. An order for interest payment on 300, 000, 000 to the tune of 45, 000, 000 the interest
being 15% monthly.
c. An order for payment of specific damages to the tune of 9, 600, 000 being rent paid for
the residential house.
d. An order for interest payment on 9, 600, 000 for the rent incurred to the tune of 1,440,
000.
e. General damages to the tune of 5,000, 000 (whether you give it or not, it does not
matter as the court will deem fit to give. It is advantageous to indicate so that the court
can judge you accordingly). But the content will not be defective for quantifying the
general damages.
f. An order for interest payment on the decretal 7% per annum.
g. Costs of the suit be provided for.
h. And any other reliefs as the court may deem proper and just to grant.
These are the reliefs at the end of the plaint. In the judgment, do not expect the court to give
you everything you prayed for as some evidence might be rejected. The principal sum can be
given. The rent can be denied. General damages can be adjusted. The reliefs can thus be
adjusted. Now out of the judgment you will have to prepare the decree reflecting what has
been granted by the Court.

63
Nicksoni Filbert Notes (unedited)
 IN THE COURT OF RESIDENT MAGISTRATE OF DAR ES SALAAM
AT KISUTU
Civil Case No. 25 of 2020

Nicksoni Filbert……………………………….. Plaintiff

versus
Sadan Construction Co LTd……………….. Defendant
DECREE
The plaintiff before this Court claims for:

a. An order for payment of 300, 000, 000 contractual sum paid to the defendant.
b. An order for interest payment on 300, 000, 000 to the tune of 45, 000, 000 the interest
being 15% monthly.
c. An order for payment of specific damages to the tune of 9, 600, 000 being rent paid for
the residential house.
d. An order for interest payment on 9, 600, 000 for the rent incurred to the tune of 1,440,
000.
e. General damages to the tune of 5,000, 000 (whether you give it or not, it does not
matter as the court will deem fit to give. It is advantageous to indicate so that the court
can judge you accordingly). But the content will not be defective for quantifying the
general damages.
f. An order for interest payment on the decretal 7% per annum.
g. Costs of the suit be provided for.
h. And any other reliefs as the court may deem proper and just to grant.
Now therefore the court orders or DOES ORDER as follows:

a. Payment of 300, 000, 000 being the principal sum.

b. An interest granted in to the tune of 20, 000, 0000.
c. The rent amount to the tune of 9,
d. Y
e.

Dated at Dar es Salaam this 30 day of March 2021.

64
Nicksoni Filbert Notes (unedited)
(signed)
Sealed.
Note that the date in the Decree must tally with the date in judgment.

65
Nicksoni Filbert Notes (unedited)
 EXECUTION OF THE DECREE
Execution is about enforcing the legal right as stated in the decree. The governing laws in
execution is the Civil Procedure Code, sections 31-55. Read also Orders XXI and XXXIX. They
provide for procedures for execution. Read also Land Disputes Courts (District Land and
Housing Tribunal) Regulations 2003, regulations 23-32; and for labour read relevant laws.
It is important to note that in your plaint the last relief was costs. In the judgment, costs were
given. In the decree, that item is mentioned as well. How to execute them? The best practice is
to file the Bill of Costs before the decree is executed. If you use the special form for decree
execution and put all the details, but what about item for costs? Are the costs known? How
much you spent? How to get them? If you know how much you spent and you have all the
receipts, who will verify the details? So, the best way to get the Bill of Costs first then we will
put them later in the decree. Filing a bill of costs by itself is another case. It can even take two
years to finish it. That’s why some people execute the Decree without the Bill of Costs. But you
are not barred later on from asking for their execution.
The Court with jurisdiction to execute Decree is either the same court or the court to which the
decree is sent for execution, section 33 of the Civil Procedure Code. This comes with the
concept of transfer of decree to another court with the same level of jurisdiction as with the
court that issued it. For land disputes, and even labour, the procedure is different. If you have
the matter before the tribunal, execution takes place in the District Land and Housing Tribunal.
The Ward Tribunals lack authority to execute their decrees. Awards from Commission for
Mediation and Arbitration are executed in the High Court labour divisions. So CMAs do not
have powers to execute their own decisions or awards. Are these transfers?
Modes of Execution of Decrees
How? You have the judgment and the decree, Form No. 10 is for the execution of decree. At the
end of that form, there is a question: which mode do you want the court to employ in executing
the decree? Is it a garnish order? Do you want to attach property? Find ways upon which the
Decree can be executed? Sometimes you execute a decree by asking for the judgment debtor
to be committed to prison. But the civil prisoner will remain in custody and you will have to
sustain him and he will be there until when his relatives will take him out by payments.
Before you sue, make sure you know the financial status of the person you want to sue.
Assignment: how do you execute a monetary decree against the government? If you read
section 42 it gives you modes of executing a court decree; but the modes as listed under
section 42 are applicable in executing decrees against the government. You cannot apply for
committing the DED as a civil prisoner where the debt is not paid, until his officers have paid
the principal amount. The same system for executing court decree against local government
authorities is as the same as that of the Central Government. They have been made the same

66
Nicksoni Filbert Notes (unedited)
through recent legal amendments and recent decisions of the High Court. This is a good area
for research. HOW to execute the decree against the government?
OBJECTION PROCEEDINGS IN EXECUTION
It is during execution and you are not a party to the proceedings which have been concluded.
The decree holder wants to executive. He executes it through attachment and sale. However,
he attached your property and you were not the decree debtor. Objection proceedings are not
proceedings against preliminary objections. Preliminary objections are raised at the preliminary
level. Objection proceedings come at the time of execution of the court decree your property
has been attached wrongly and it was not supposed to be the case. So, how do you move the
court to rule in your favour? He cannot appeal because he is not a party to the actual case. So,
how do you move the court? Your action to protect your property is objection proceedings. See
Order XXI Rules 57-62 of the CPC. The Marginal notes are on the investigation of claims. You
make an application by chamber summons and affidavit to the Court with rule 57. You invite
the court to investigate the claim. In case the court gives the decision you do not like, you
cannot appeal. You can only open a new case against the two litigants to the original case.
One thing on appeals, why memorandum and not petition and petition not memorandum?
When and where do you use either of the two? Take note: in criminal matters, we do not have
a memorandum of appeal except from High Court to the Court of Appeal. If you have a criminal
appeal from High Court to Court of Appeal, the document is memorandum of Appeal.
Otherwise, from the Primary Court to the High Court, the document is petition when the case is
criminal. In civil matters, this confusion comes in as the documents are applicable based on
nature and origin. Any case originating from the primary Court to the district court going to the
High Court, the applicable law is the Magistrates Court’s Act which governs the procedure. The
document for appeal is the petition of appeal. You use petition of appeal for matters originating
from the primary court. But original jurisdiction of the District Court or Resident Magistrate
Court, its appeals go to the High Court by way of Memorandum of appeal because it is
governed by the CPC. And from the High Court to the Court of Appeal, it is the memorandum of
appeal.

67
Nicksoni Filbert Notes (unedited)
BILL OF COSTS
Lawyers are required to issue a demand letter before they sue, although it is not a legal
requirement. However, if you do not issue the demand letter, you will not be able to claim the
Bill of Costs.
One of the items in the Bill of Costs is the amount the advocate was paid to run the case. But if
the demand notice (letter) was not written in the beginning, this becomes problematic. Read
Order 70 of the Advocates Remuneration Order. Unless you have written this and later on the
defendants want to pay, you will not get the money.
The Bill of costs is the list of itemized costs and expenses incurred in the course of the
proceedings. It includes costs for filing the plaint or case, interlocutory applications, transport
to and from court, and other disbursements or payments. This is prepared by the party that has
won the case and awarded costs by the court. If the costs are not awarded, there is no need to
prepare the Bill of costs. The governing law is the Advocates Remuneration Order, GN. 264 of
2015. The document that constitutes the document, read Order 55. Who determines the Bill of
costs when filed? It is heard by the taxing master who is the Registrar of the High Court; and for
subordinate court, it is the Resident Magistrate in charge. A person aggrieved by order of taxing
master who issues the taxation order, the remedy is to read Order 7 of the Advocates
Remuneration Order where the remedy is reference to the judge of the High Court. If it is
before the Registrar, reference is still with the High Court. You apply with chamber summons
and affidavit and there is no question of appeal? If you are aggrieved by the decision of the
judge of the High Court, you now appeal to the Court of Appeal.
A chamber summons is signed by the Court. Costs for lodgement is a document prepared by the
Court

68
Nicksoni Filbert Notes (unedited)
 IN THE COURT OF RESIDENT MAGISTRATE OF DAR ES SALAAM
AT KISUTU
Taxation Cause (Bill of Costs) No. 20 of 2020

(Arising from or originating from

Civil case No. 20 of 2020)
Nicksoni Filbert…………………………………………..Decree holder
versus
Sadan Construction Co Ltd…………………………… Judgment debtor

BILL OF COSTS
SUBTOTAL A (Costs on the Case, apart from what you paid to the court)

Serial No. Date Particular Among claimed Amount Taxed

1. 20.02.2019 (the Instructions from the 20,000,000

date he client or decree holder
instructed you) to represent him in civil
case No. 20 of 2020

2. 22.02.2019 Transport to court to file 100,000

civil case N. 20 of 2020

3. 25.02.2019 Transport to serve 100,000

notice

4. 29.02.2019 Attending court for 100,000

hearing

5. Sub-total A 20,300,000 (all

the money you
were paid as
your fees and
the costs to
handle case

SUB-TOTAL B (DISBURSMENT) what you paid in court

Serial No. Date Particular amount Amount Taxed

69
Nicksoni Filbert Notes (unedited)
 1. The date must Fees for filing 40,000
tally with the plaint
date you went by
transport to the
court

2. Bill of costs (you

leave one
column both in
Part A and B for
the court to fill
it. You ask that
the costs to fill
the bill of costs
should be
included, see
Order 55. That’s
what it says.
Where the last
column is left

3. Subtotal B 15,000,000

4. Grand Total 35,300,000

(A+B)

5. Less amount 35,300,000

taxed off (the
-
amount taxing
master has 15,300,000
removed which
he has put in the
last column

6. Bill taxed at Tshs 20,000,000

Bill taxed at Tshs 20,000,000 Tshs this 30 day of January 2021

………………………………….
To be signed by Taxing Master

70
Nicksoni Filbert Notes (unedited)
Presented for filing this ….. day of …….. 2021.
…………………………………..
Court Clerk/ Registry

Document drawn by

The last column is left blank. Two options, the Order says if you receive receipts for example, it
is not necessary you attach them in the Bill of Costs application. Rather, you can bring them to
the Bill of Costs Hearing. It is not must to attach them. When you are in the proceedings of the
Bill of Costs, you will start with Item 1 in A. The other side will give their view regarding the
item. For example, you were paid 7M while the case involves 2M. After much discussion and
disputes, the amount taxed will be maybe 1M, what the taxing master thinks is reasonable. So,
at the end you will have the two subtotals. The amount obtained at the end is what you will
take in the special form for execution of the decree. It is prudent thus to start with this
application first before applying for execution. We have skipped the notice of lodgment. Note
that the certificate of folios also needs to be attached with the Bill of Costs. Its purpose is to
certify that what is contained in Bill of Costs is true to the best of one’s own knowledge. Then it
is dated and signed.

71
Nicksoni Filbert Notes (unedited)